                                                              FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit
                  UNITED STATES COURT OF APPEALS          June 15, 2011
                        FOR THE TENTH CIRCUIT          Elisabeth A. Shumaker
                                                           Clerk of Court


COLLIE M. TRANT,

            Plaintiff-Appellant,

v.                                               No. 10-6247
                                          (D.C. No. 5:10-CV-00555-C)
STATE OF OKLAHOMA; BOARD                         (W.D. Okla.)
OF MEDICOLEGAL
INVESTIGATIONS; OFFICE OF THE
CHIEF MEDICAL EXAMINER;
DEWAYNE ANDREWS, in his
individual and official capacities;
DOUGLAS STEWART, in his
individual and official capacities;
ROCKY MCELVANY, in his
individual and official capacities; C.
MICHAEL OGLE, in his individual
and official capacities; CHARLES
CURTIS, in his individual and official
capacities; KARLIS SLOKA, in his
individual and official capacities;
CHRIS FERGUSON, in his individual
and official capacities; SHANDA
MCKENNY, in her individual and
official capacities; CHEROKEE
BALLARD, in her individual and
official capacities; SANDRA
BALZER, in her individual and
official capacities; TOM JORDAN, in
his individual and official capacities,

            Defendants-Appellees.
                           ORDER AND JUDGMENT *


Before O’BRIEN, ANDERSON, and HOLMES, Circuit Judges.



      After his termination as Chief Medical Examiner for the State of Oklahoma

(CME), plaintiff Collie M. Trant filed suit in state court against various entities

and officers, claiming that his termination violated state and federal law. Citing

the presence of federal claims brought against individual officers under 42 U.S.C.

§ 1983, defendants removed the action to federal court, see 28 U.S.C. § 1441, and

then moved to dismiss those claims based on qualified immunity. The district

court granted the motion and, declining to exercise supplemental jurisdiction

under 28 U.S.C. 1367, remanded the remaining claims to state court. Mr. Trant

appeals both aspects of the court’s decision. For the reasons set forth below, we

affirm in part, reverse in part, and remand for further proceedings.

                         I. FACTUAL BACKGROUND




*
       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.

                                         -2-
      The facts summarized here are taken, as they must be when qualified

immunity is raised in connection with a motion to dismiss, from the four corners

of the (amended) complaint. Archuleta v. Wagner, 523 F.3d 1278, 1281

(10th Cir. 2008). The Oklahoma Board of Medicolegal Investigations (Board),

which controls and supervises the Office of the Chief Medical Examiner (OCME),

appointed Dr. Trant as CME in May 2009. At that time, OCME was being

investigated for sexual harassment and improper employee-overtime claims.

Dr. Trant alleges he soon discovered that the person investigating the sexual

harassment, Jill Kinney, was actually encouraging employees to advance

unfounded harassment allegations and to make the suspect overtime claims. He

directed OCME’s executive administrator, defendant Cherokee Ballard, to relate

the information to appropriate law enforcement officials. Later, Ms. Ballard

allegedly told him she had been advised by defendant Sandra Balzer, the assistant

Attorney General (AG) who served as legal advisor to OCME and the Board, that

OCME should not put anything in writing about the potential misconduct.

      In July 2009, the grand jury investigating OCME indicted former employee

Kevin Rowland for sexual harassment and battery, triggering exchanges in the

media between Mr. Rowland’s attorney and the AG’s office about the substance

and propriety of the prosecution. In addition to the indictment, the grand jury

issued an interim report generally critical of the OCME. Within days, reporters

were questioning Dr. Trant about OCME’s negative image. Dr. Trant stated that

                                         -3-
he planned to counteract the image by publicly addressing various misstatements

by the grand jury, politicians, and anyone else critical of OCME in recent years.

Shortly thereafter, he met AG representatives, advising them that the grand jury’s

interim report contained gross errors. Dr. Trant claims he was told that the AG’s

office would “finish” OCME if he did not keep his mouth shut.

      Mr. Rowland was acquitted in November 2009. In early December, an

OCME employee gave Dr. Trant emails allegedly implicating Ms. Kinney in

attempts to control the earlier grand jury testimony of OCME personnel and to

solicit overtime claims against OCME on behalf of a private organization or law

firm. The emails also purportedly showed that the persons accusing Mr. Rowland

of sexual harassment had themselves participated in even worse misconduct. The

employee who gave the emails to Dr. Trant complained that he had been subject

to harassment by Ms. Kinney and the people who had made allegations against

Mr. Rowland. Dr. Trant discussed the emails with Ms. Ballard, indicating it

would take time to review the emails in detail but the information was going to

make the AG look very bad with respect to the indictment of Mr. Rowland.

      Around this time, Dr. Trant hired defendant Tom Jordan, previously the

representative of the Oklahoma State Bureau of Investigation on the Board, to be

OCME’s Chief Administrative Officer, on the Board’s recommendation. Upon

learning that Mr. Jordan had met with subordinate employees without informing

him, Dr. Trant instructed Mr. Jordan in future to advise him regarding the purpose

                                        -4-
and nature of any such meetings. Mr. Jordan continued meeting with employees,

particularly some of those implicated in the emails discussed above, without

informing Dr. Trant. Near the end of January 2010, Mr. Jordan told Dr. Trant

that, based on his meetings with the employees, he felt Dr. Trant was allowing the

agency to self destruct. But Mr. Jordan refused to discuss these meetings with

Dr. Trant, insisting he would not be a snitch. The two, however, agreed to meet

the next day.

      But that day, January 28, 2010, Dr. Trant was summoned to a meeting with

several members of the Board by its chairman, defendant Dewayne Andrews.

Dr. Trant alleges this meeting was in violation of the state’s Open Meeting Act

(OMA). When Dr. Trant arrived, he learned that Mr. Jordan was also present.

Mr. Jordan complained about Dr. Trant based on what he had heard from OCME

employees, but admitted he refused to identify them. Dr. Trant described their

conversation of the day before, noting he had instructed Mr. Jordan to identify the

employees he had met with and the purpose of the meetings. At some point,

according to Dr. Trant, Mr. Jordan accused him of lying and lacking integrity.

Board Chairman Andrews indicated that he felt the truth lay somewhere in the

middle and adjourned the meeting.

      The next day, Dr. Trant emailed Board Chairman Andrews, expressing

concerns about the meeting. The email stated that he had exercised his proper

statutory authority as OCME over Mr. Jordan. More significantly, it noted that he

                                        -5-
had documentation indicating the sexual harassment claims relating to the failed

prosecution of Mr. Rowland were faked by employees against whom he probably

had sufficient evidence to bring criminal charges, and that the AG and grand jury

had bungled the investigation by failing to look into Ms. Kinney and the

employees making the accusations. He also stated that the AG had ignored his

concerns regarding Ms. Kinney’s investigation and had even threatened to “finish

off” OCME after he complained of gross errors in the grand jury interim report

about the agency. Board Chairman Andrews forwarded the email to other Board

members for consideration at an emergency meeting on February 1, 2010–another

meeting that Dr. Trant contends violated the state OMA.

      At the meeting the Board went into executive session to discuss Dr. Trant’s

employment as CME. Dr. Trant was given twenty minutes to present information

relevant to the matters raised in his email. He also threatened to hire a lawyer to

report the wrongdoing associated with the grand jury investigation. Dr. Trant was

thereafter excluded from the session, but he alleges on information and belief that

Mr. Jordan repeated that he was inept, a liar, and lacked integrity and then joined

Ms. Ballard in causing a groundless claim of sexual harassment to be presented to

the Board. When the Board returned to open session, it voted to place Dr. Trant

on administrative leave, taking his keys and pass card, thereby barring him from

OCME facilities and cutting off access to his sources of information. Dr. Trant

alleges that this action, taken on the advice of Assistant AG Balzer, exceeded the

                                         -6-
Board’s supervisory authority over a CME, which he contends the Board could

only hire or fire and oversee through regulations.

      The next day, the news media reported Dr. Trant’s suspension, noting his

discovery of evidence that led him to believe the sexual harassment allegations

made against Mr. Rowland were false. This prompted the Board to call another

meeting, schedule for February 5. In the meantime, the media reported that Scott

Adams, the attorney who had represented Mr. Rowland, was now representing

Dr. Trant, and quoted him as saying that Dr. Trant had complained to the AG

about the problems with the investigation of Mr. Rowland. On February 4, a local

newspaper reported that attorneys for Dr. Trant had said they plan to contact the

FBI about irregularities discovered regarding the grand jury investigation,

referring to hundreds of emails showing the grand jury was compromised. The

next day, the media reported that Dr. Trant had been suspended because he had

reported problems with the grand jury. That same day, February 5, the Board met

and, again allegedly on the advice of Ms. Balzer, went into executive session and

then voted to terminate Dr. Trant’s employment. Dr. Trant contends this meeting

violated the state OMA as well.

      The following day, the media quoted Mr. Jordan as saying that he did not

think Dr. Trant was competent to run the OCME, that he was not sure Dr. Trant

was mentally stable, and that Dr. Trant had fabricated or embellished much of

what he had said to the Board and the media. Dr. Trant claims these statements

                                         -7-
were false and stigmatizing, particularly as to his professional standing. He also

complains in the same vein about statements made to the media by Mr. Jordan and

Ms. Ballard a month later, which allegedly suggested OCME property had been

lost through mismanagement during the tenure of his administration.

                    II. DISTRICT COURT PROCEEDINGS

      Dr. Trant proceeded on an omnibus complaint asserting sixteen state and

federal claims for relief against various defendants in different capacities. After

removal, defendants moved to dismiss on various grounds, including qualified

immunity as to the federal claims asserted against the individual defendants in

their personal capacities. The latter claims alleged that the individual defendants

(1) retaliated against Dr. Trant for engaging in protected speech, in violation of

the First Amendment; (2) deprived Dr. Trant of a property interest in his

employment as CME without providing adequate procedural protections, in

violation of the Due Process Clause; and (3) deprived Dr. Trant of a liberty

interest in his reputation by publishing stigmatizing statements in conjunction

with his termination without providing him adequate procedures to clear his

name, also in violation of the Due Process Clause. The district court limited its

merits disposition to the dismissal of these federal claims, remanding the state

claims for disposition in the Oklahoma courts.

      As to the First Amendment claim, the district court concluded that all of the

statements alleged by Dr. Trant to have prompted defendants’ retaliatory actions

                                         -8-
pertained to his official duties as CME. A public employee’s speech pursuant to

his official duties is not constitutionally protected from evaluation and discipline

by his government employer. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

Accordingly, the district court held that Dr. Trant had not alleged a violation of

First Amendment guarantees and, a fortiori, had not alleged a violation of clearly

established First Amendment law.

      As to the first due process claim, the district court rejected Dr. Trant’s

contention that state law, particularly the state OMA, created a property interest

in his position as CME. Rather, as CME, Dr. Trant was a mere at-will employee

serving at the pleasure of the Board. Concluding that Dr. Trant lacked a property

interest sufficient to trigger constitutional protection, the district court held that

he had not alleged a due process violation in this respect. See, e.g., Darr v. Town

of Telluride, 495 F.3d 1243, 1251-53 (10th Cir. 2007) (rejecting fired deputy

marshal’s due process claim for lack of property interest in at-will employment).

      As to the second due process claim, the district court noted that some of the

allegedly stigmatizing statements were not published in the sense required to

trigger protection, see Sipes v. United States, 744 F.2d 1418, 1421-22 (10th Cir.

1984) (holding no liberty interest implicated where reasons for termination were

merely raised to and affirmed by administrative review board), and that those that

were had not been adequately tied to either the basis for his termination as CME

or the direct loss of other economic opportunities, see Evers v. Regent of Univ. of

                                           -9-
Colo., 509 F.3d 1304, 1310 (10th Cir. 2007) (noting liberty-interest claim may

fail for these reasons). Accordingly, the district court held that Dr. Trant had not

alleged a due process violation based on a liberty interest. It further held that the

published statements were not, in any event, of a type that a reasonable official

would have known implicated due process proscriptions, entitling defendants to

qualified immunity even if a constitutional claim had been made out. See

generally Gomes v. Wood, 451 F.3d 1122, 1135-36 (10th Cir. 2006).

      Finally, the district court acknowledged that, having dismissed the federal

claims, it had the discretionary authority to either retain and decide the state law

claims or remand them to state court. Citing the governing statutory provisions

and relevant case law, the district court elected to remand the state claims.

                           III. APPELLATE REVIEW

      “The correct standard for reviewing a motion to dismiss in a qualified

immunity case is the same as for dismissals generally.” Archuleta, 523 F.3d at

1281. Exercising de novo review, “we accept as true all well-pleaded facts, as

distinguished from conclusory allegations, and view the facts in the light most

favorable to the nonmoving party” to determine whether the complaint sets forth

plausible grounds to believe the claims asserted will find evidentiary support. Id.

at 1282-83 (quotation and alteration omitted). But we conduct this review in light

of the unique nature of qualified immunity, which imposes a “heavy two-part

burden” on a plaintiff: “First, the plaintiff must demonstrate that the defendant’s

                                         -10-
actions violated a constitutional or statutory right. Second, the plaintiff must

show that the constitutional or statutory rights the defendant allegedly violated

were clearly established at the time of the conduct at issue.” Id. at 1283

(quotation omitted).

A. First Amendment Claim

      “[W]hen public employees make statements pursuant to their official

duties, the employees are not speaking as citizens for First Amendment purposes,

and the Constitution does not insulate their communications from employer

discipline.” Garcetti, 547 F.3d at 421. The Supreme Court has not set out “a

comprehensive framework for defining the scope of an employee’s duties” in this

context. Id. at 424. But it has explained that “[t]he proper inquiry is a practical

one,” id., and “the listing of a given task in an employee’s job description is

neither necessary nor sufficient to demonstrate that [it] is within the scope of the

employees’ professional duties,” id. at 425. This court “take[s] a broad view” of

what speech falls within official duties, asking generally if “it involves the type

of activities that the employee was paid to do” Chavez-Rodriguez v. City of Santa

Fe, 596 F.3d 708, 713 (10th Cir. 2010) (quotation omitted). Speech may pertain

to official duties “even though it addresses an unusual aspect of the employee’s

job that is not part of his everyday functions,” id. at 714 (quotation omitted), and

“even if it deals with activities the employee is not expressly required to

perform,” Thomas v. City of Blanchard, 548 F.3d 1317, 1324 (10th Cir. 2008).

                                         -11-
Whether speech relates to official duties is a legal inquiry for the court, not a

factual question for the jury. Chavez-Rodriguez, 596 F.3d at 713.

      Dr. Trant cites four communications that he contends involved protected

speech outside of his official duties. The first is his email of January 29, 2010, to

Board Chairman Dewayne Andrews relating his concern that OCME employees

had given false or misleading accounts of sexual harassment by former co-worker

Kevin Rowland, supporting his eventual indictment by the grand jury. We agree

with the district court that informing the Board about such conduct by OCME

personnel–as to both the accused former employee and the employees accusing

him–was within the scope of Dr. Trant’s official duties as CME. Speech about

workplace matters communicated through proper chain of command is typically

deemed within the scope of official duties. See Rohrbourgh v. Univ. of Colo.

Hosp. Auth., 596 F.3d 741, 747 (10th Cir. 2010); cf. Reinhardt v. Albuquerque

Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1135-36 (10th Cir. 2010) (noting report of

wrongdoing may fall outside official duties if employee’s job “did not relate to

reporting wrongdoing” and “the employee went outside the chain of command

when reporting the wrongdoing”). There could hardly be a clearer example of

chain-of-command communication: the employees were Dr. Trant’s subordinates

and the Board his supervisor. See Okla. Stat. Ann. tit. 63, § 933 (“The [OCME] is

. . . operated under the control and supervision of the Board. The [OCME] shall

be directed by the [CME], [who] may employ such other staff members as the

                                         -12-
Board may specify.”); id. § 935 (“The [CME] shall be directly responsible to the

Board . . . for the administration of the [OCME].”).

      Next, Dr. Trant notes that some of his comments to the Board included

criticism of the grand jury investigation, and argues that this aspect of his speech

removed it from the scope of his official duties. This argument artificially

separates matters that are intrinsically linked. The AG was investigating OCME

employees’ accusations of sexual harassment by a fellow OCME employee, and

the substance of Dr. Trant’s objection regarding the investigation was that the

accusing employees–his subordinates–had led the AG astray, resulting in the

unjustified indictment of the accused OCME employee. That this objection also

blamed the AG for being misled does not alter the fact that it related to incidents

at OCME and accounts of those incidents given by OCME employees in the

course of the ensuing investigation. Dr. Trant’s discussion of such matters with

the Board was within the scope of his official duties as director of OCME.

      The other two communications cited by Dr. Trant, which the district court

unfortunately did not address with specificity, raise very different considerations.

Both involve statements he made about retaining counsel and reporting to outside

authorities, such as the FBI, the wrongdoing he had discovered tainting the grand

jury investigation. He made the first statement to the Board during the meeting

that ended in his suspension, and the second (through counsel) to the media after

the suspension and just before his termination. This court has repeatedly held

                                         -13-
that reporting or threatening to report wrongdoing to outside authorities is not

within the scope of official duties where the employee is not tasked to do so by

his employer nor required to do so by independent legal obligation imposed as a

function of his official position. See Thomas, 548 F.3d at 1324-26 (holding

building inspector’s threat to report illegal permit to state bureau of investigation

was protected speech outside official duties); Casey v. West Las Vegas Indep.

Sch. Dist., 473 F.3d 1323, 1331-32 (10th Cir. 2007) (holding director of local

Head Start program acted pursuant to official duties when, consistent with

disclosure obligations attending her authority over the federally funded program,

she informed regional Head Start office of school district’s noncompliance with

regulations governing program funds, but acted outside her official duties when

reporting to state AG about school board’s noncompliance with state law). There

is nothing in the complaint to suggest that the CME’s duties included reporting, to

authorities such as the FBI, his suspicions of possible criminal wrongdoing and

professional malfeasance in connection with the AG’s investigation and resultant

grand jury indictment of Mr. Rowland. Nor is there any indication of an

independent legal obligation in this regard imposed on him specifically as a

function of his position as CME. Under the cited case law, decided years before

the events in this case, we must hold that the speech at issue triggered First

Amendment protection and that defendants should have known it did.




                                         -14-
      Defendants have argued that, in the event we conclude any of Dr. Trant’s

speech fell outside his official duties, we should continue the First Amendment

analysis beyond this first step at which the district court resolved the claim. They

suggest we could affirm its dismissal later in the governing inquiry, specifically

the third step, at which the court determines “whether the employee’s interest in

commenting on the issue outweighs the interest of the state as employer.” 1

Chavez-Rodriguez, 596 F.3d at 713 (quotation omitted). We decline to do so, for

good practical and prudential reasons. This step in the inquiry is not a simple

matter. While it is framed as a “balancing test,” it actually places a substantial

threshold burden on the employer before balancing is even considered:

      [T]his Court has held that First Amendment rights are protected
      unless the employer shows that some restriction is necessary to
      prevent the disruption of official functions or to insure effective
      performance by the employee. In other words, unless the
      government employer can show that the termination was based on
      legitimate reasons grounded in the efficient conduct of political
      business, there is no need to proceed to balancing, and the First
      Amendment interest of the plaintiff prevails.




1
       The full “Garcetti/Pickering test” for resolving First Amendment claims of
public employees consists of five steps: (1) whether the speech at issue was made
pursuant to official duties; (2) whether the speech was on a matter of public
concern; (3) whether the employer’s interests in regulating the speech outweighs
the employee’s free speech interests; (4) whether the speech was a motivating
factor in a detrimental employment action; and (5) whether the employer would
have taken the same action if the speech had not occurred. Dixon v. Kirkpatrick,
553 F.3d 1294, 1301-02 (10th Cir. 2009).

                                        -15-
Dixon v. Kirkpatrick, 553 F.3d 1294, 1304 (10th Cir. 2009) (quotations and

citations omitted); see also Brammer-Hoelter v. Twin Peaks Charter Acad.,

492 F.3d 1192, 1207 (10th Cir. 2007) (stressing that “the employer bears the

burden of justifying its regulation of the employer’s speech”). As indicated by

the repeated references in the quoted passage to the need for a “showing” of the

employer’s interest, this is a true burden of demonstration, not a mere matter of

hypothetical articulation: “We have cautioned that the employer cannot rely on

purely speculative allegations that certain statements caused or will cause

disruption.” Dixon, 552 F.3d at 304 (quotation omitted). The Dixon decision,

with its lengthy discussion of this threshold matter, see id. at 1304-08, is a telling

illustration of the potentially detailed considerations involved.

      And that, of course, is only the prelude to the actual balancing required,

where the court “ha[s] to weigh [the employee’s] interest in making that speech,

and the interest of her audience in hearing it, against the interests of her

government employer.” Id. at 1308. We have repeatedly noted that “‘there is no

easy formula for ‘weighing’ an employee’s First Amendment speech against an

employer’s interest in an efficient and disciplined work environment.’” Id.

(quoting Brammer-Hoelter, 492 F.3d at) (further quotation omitted).

      There are certainly instances in which this court has disagreed with a

district court’s initial determination that a government employee’s speech was

unprotected but gone on to determine whether the disposition in favor of the

                                          -16-
employer might still be affirmed at the balancing step of the inquiry. But, in light

of the considerations noted above, it should not be surprising that such cases have

involved the appeal from summary judgment–where an adequate factual record

had been developed to actually “show,” rather than merely speculate about, the

employer’s interest and to weigh it in an informed manner against the First

Amendment interests involved. See, e.g., Thomas, 548 F.3d at 1327-28; Casey,

473 F.3d at 1333-34. Here, not only do we lack a summary judgment record on

which to rely for consideration of the government employer’s interest and its

comparative importance vis a vis the First Amendment interests alleged in the

complaint, we do not even have a responsive pleading from defendants. Under

the circumstances, remanding for further proceedings before the district court is

in our view the most appropriate course. 2

B. Due Process Claim Based on Alleged Property Interest

      “In the employment context, a property interest [for due process purposes]

is a legitimate expectation in continued employment.” Hesse v. Town of Jackson,

541 F.3d 1240, 1245 (10th Cir. 2008) (quotation omitted). “We determine

whether such a property interest exists by looking at state law.” Id. “State law



2
       We likewise express no view as to Ms. Balzer’s fall-back argument that she
should not be held liable in connection with any of the Board’s actions because
she was not a member, despite her role as its legal advisor. We leave that point,
with its potentially complicated legal and factual aspects, for the district court to
address in the first instance as well.

                                        -17-
sources for property interests can include statutes, municipal charters or

ordinances, and express or implied contracts.” Schulz v. City of Longmont,

465 F.3d 433, 444 (10th Cir. 2006) (quotation omitted). A property interest may

be created based on “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, 495 F.3d at 1251. But state law providing for mere at-will

employment will not give rise to a property interest. Id. at 1252.

      Oklahoma law divides public employees into two categories–“classified”

and “unclassified”–differentiated specifically with regard to their at-will status:

      [A] classified employee[] is not an employee-at-will. Under the
      Oklahoma Personnel Act, public employees are designated as being
      in either “classified” or “unclassified” service. Employees in
      classified service are under the jurisdiction of the Oklahoma Merit
      System of Personnel Administration, and are protected by detailed
      rules and procedures concerning all aspects of the employment
      relationship, including the right to appeal from . . . suspensions, and
      involuntary discharge without just cause. These employment rights
      are not afforded to employees in the unclassified service.
      Unclassified employees serve at the pleasure of their employers and
      may be discharged at any time, “with or without cause.” They are
      considered at-will employees.

McCrady v. Okla. Dep’t of Pub. Safety, 122 P.3d 473, 475 (Okla. 2005) (citations

omitted). 3 In terms directly relevant to the due process inquiry, an unclassified


3
       There is Tenth Circuit case law broadly stating that, absent specific
contractual arrangements to the contrary, “public employees are employed at
will.” Bunger v. Univ. of Okla. Bd. of Regents, 95 F.3d 987, 990 (10th Cir. 1996).
Such statements must be qualified in light of the authoritative construction of
                                                                       (continued...)

                                         -18-
position “shall not convey any right or expectation of continued employment.”

Okla. Stat. Ann. tit. 74, § 840-5.1A(A). Positions designated as unclassified

include “heads of agencies.” Id. § 840-5.5(A), (A)(2). As an office of the State

of Oklahoma, the OCME is an “agency,” id. § 840-1.3(1), and the CME heads the

OCME, see Okla. Stat. Ann. tit. 63, §§ 933 and 935. The CME is clearly an

unclassified at-will position–a point corroborated by express statutory recognition

that the CME “serve[s] at the pleasure of the Board.” Id. § 934.

      The straightforward conclusion from the foregoing is that Dr. Trant was a

mere at-will employee with no property interest in his position as CME sufficient

to trigger due process protections. 4 He attempts to avoid this conclusion by

3
 (...continued)
state law by the Oklahoma Supreme Court.
4
       In one variant of his argument, Dr. Trant insists that even if he could be
terminated without due process, the Board lacked authority to suspend him for the
few days before he was fired and this alleged lack of authority translates into a
distinct property right violated by the Board without due process. There are any
number of deficiencies with this argument. As a general matter, the notion that
an employee may be summarily fired yet has a right to due process before being
suspended defies common sense, and Dr. Trant cites no constitutional authority
recognizing such a facially incoherent application of due process guarantees. In
any event, the underlying premise for this position–that the CME’s “serv[ice] at
the pleasure of the Board” does not afford the Board the authority to suspend a
CME–is specious. No case has been brought to our attention suggesting that the
discretionary authority implied by such unqualified language does not include the
power to suspend service as well as terminate it. Instead, Dr. Trant takes an
entirely different tack, seizing on a reference in § 933 to “rules as the Board may
prescribe” to argue that the Board may take such actions as suspending the CME
only after establishing parameters for the action through rule-making. But the
reference relates specifically to the Board’s prescription of rules governing the
                                                                         (continued...)

                                         -19-
arguing that the procedural requirements of the state Open Meeting Act (OMA),

Okla. Stat. Ann. tit 25, §§ 301-314, gave him a protected interest sufficient to

support a due process claim to remedy the Board’s alleged non-compliance with

the OMA in connection with his suspension and termination. The district court

rejected this argument on the basis that the OMA was intended solely for the

public’s benefit and not to provide enforceable rights for state employees

adversely affected by decisions taken in violation of the OMA. While we believe

Dr. Trant’s reliance on the OMA is misplaced, we do not adopt the district court’s

reasoning in this respect, as Oklahoma case law indicates that public employees

may indeed challenge decisions affecting their employment for lack of

compliance with OMA procedures. See Oldham v. Drummond Bd. of Educ.,

542 P.2d 1309, 1310-11 (Okla. 1975) (affirming judgment declaring teacher’s

termination invalid due to school board’s noncompliance with OMA); see also

Graybill v. Okla. State Bd. of Educ., 585 P.2d 1358, 1359-60 (Okla. 1978)

(considering teacher’s OMA challenge to non-renewal of contract but rejecting it

on the merits because school board had complied with OMA).

      The flaw in Dr. Trant’s position is, rather, that the OMA imposed only

procedural, not substantive, constraints on the Board. Nothing in the OMA limits

the grounds on which the Board could act, such as a requirement for “just cause”


4
(...continued)
CME’s delegation of his authority to deputies and nothing else.

                                        -20-
or the like. Thus, he “attempts to construct a property interest out of procedural

timber, an undertaking which the Supreme Court warned against in Cleveland

Board of Education v. Loudermill, 470 U.S. 532, [541] . . . (1985).” Bunger v.

Univ. of Okla. Bd of Regents, 95 F.3d 987, 990-91 (10th Cir. 1996) (“‘Property’

cannot be defined by the procedures provided for its deprivation” (quotation

omitted)); see Ripley v. Wyo. Med. Ctr., Inc., 559 F.3d 1119, 1125 (10th Cir.

2009) (“‘an entitlement to nothing but procedure’ cannot serve as the basis for a

property right protected by the Due Process Clause” (quoting Town of Castle

Rock v. Gonzales, 545 U.S. 748, 764 (2005)). Under well established principles,

Dr. Trant’s property-interest claim must fail.

C. Due Process Claim Based on Alleged Liberty Interest

      Dr. Trant has limited his appellate argument on this issue to the statement

Mr. Jordan made to the press the day after Dr. Trant’s termination. The media

allegedly quoted Mr. Jordan saying: “I don’t think the man’s competent to run

the agency. I’m not sure he’s mentally stable. And he has fabricated . . . or

embellished many of the statements he has made both . . . in executive sessions of

the board meetings and to the media.” App. Vol. I at 26. Dr. Trant further

alleged that, although Mr. Jordan was not a Board member, no “representative of

the Board disputed the accusations made publicly by [him].” Id. at 24.

      A liberty interest claim against a government employer based on damaging

defamatory statements has four elements:

                                        -21-
       First, . . . the statements must impugn the good name, reputation,
       honor, or integrity of the employee. Second, the statements must be
       false. Third, the statements must occur in the course of terminating
       that employee or must foreclose other employment opportunities. [5]
       And fourth, the statements must be published.

Evers, 509 F.3d at 1308 (quotation omitted). “These elements are not disjunctive,

all must be satisfied to demonstrate deprivation of the liberty interest.” Id.

(quotation omitted).

       The district court held that Dr. Trant’s claim failed on the third element

because (1) “Defendant Jordan’s statement . . . was made after [Dr. Trant] was

terminated and was not the basis for his termination, so [Dr. Trant] must show a

tangible harm foreclosing future opportunities,” and (2) Dr. Trant’s conclusory

allegations “that he ‘suffered economic loss’ and that ‘numerous potential clients

. . . failed . . . to hire [him]’ . . . are insufficient to satisfy the level of tangible

harm required for a liberty interest due process claim.” App. Vol. I at 78-79.

Dr. Trant challenges only the first conclusion, arguing that to be actionable the

stigmatizing statements need not be made simultaneously with the employee’s

termination nor relate directly to the reasons for termination, so long as they are

intertwined with the termination. He is correct on the first point, as “[r]oughly


5
       There is some uncertainty in our case law as to whether the two aspects of
the third element should be considered conjunctive rather than disjunctive. See
Darr, 495 F.3d at 1255 & n.4 (discussing conjunctive formulation suggested by
Renaud v Wyo. Dep’t of Family Servs., 203 F.3d 723 728 n.1 (10th Cir. 2000)).
We do not pursue the point, as the district court gave Dr. Trant the benefit of the
disjunctive test and the difference is not material to our disposition.

                                            -22-
contemporaneous” statements can suffice. Renaud v Wyo. Dep’t of Family Servs.,

203 F.3d 723, 727 (10th Cir. 2000). The second point is less clear-cut, however.

We held in Renaud that even defamation contemporaneous with termination will

not support a liberty interest claim if it “ha[s] nothing to do with the reasons for

termination.” Id. And we enforced that rule fairly strictly in holding that an

employee fired for violating a substance abuse policy could not base a claim on

false statements “that he had checked out of rehabilitation and was dangerous.”

Id. at 726. We need not undertake here the task of specifying in exacting fashion

how closely a stigmatizing statement must relate to the reasons for termination, as

additional considerations undercut Dr. Trant’s claim.

      We take a “common-sense approach [to the liberty-interest inquiry,]

examining the nature of the alleged defamation, as well as its timing, to determine

whether it occurred in the course of the termination.” Id. at 727. Here, the Board

did not publicly disclose the reasons for Dr. Trant’s termination. And Dr. Trant’s

allegations do not show that Mr. Jordan–who was not a Board member but merely

a subordinate OCME employee–was authorized to speak for the Board or that the

Board subsequently adopted his derogatory comments. Moreover, the comments

themselves do not suggest that Mr. Jordan was speaking on behalf of the Board or

even independently revealing its confidential reasons for terminating Dr. Trant.

On the contrary, Mr. Jordan’s repeated self-attributions (“I don’t think the man’s

competent to run the agency. I’m not sure he’s mentally stable.”) indicate that he

                                         -23-
was merely stating his own criticisms of his erstwhile boss at the OCME. While

such personal statements might perhaps support a state tort claim against

Mr. Jordan, they are not in our view properly deemed statements made in the

course of Dr. Trant’s termination by the Board so as to implicate a liberty interest

sufficient to support a due process claim.

                                IV. CONCLUSION

      In sum, we affirm the dismissal of Dr. Trant’s due process claims, but hold

that the district court erred in dismissing his First Amendment claim insofar as it

rests on alleged retaliation for his threat to go to outside authorities with evidence

of wrongdoing in connection with the grand jury investigation of Mr. Rowland, as

such action would not fall within his official duties as CME. Because the latter

holding reinstates one of the federal claims underwriting removal of the action to

federal court, the district court’s decision to remand the case to state court has

lost its legal premise and must be reversed as well.




                                         -24-
      The judgment of the district court is AFFIRMED IN PART, REVERSED

IN PART, and the cause is REMANDED for further proceedings consistent with

this order and judgment.



                                               Entered for the Court



                                               Jerome A. Holmes
                                               Circuit Judge




                                    -25-
