                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                       February 23, 2007
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court

    DA VID LEE,

              Plaintiff-Appellant,

     v.                                                    No. 06-2008
                                                 (D.C. No. CIV-04-1087 JP/W DS)
    R EG EN TS O F U N IV ER SITY OF                        (D . N.M .)
    CALIFO RNIA, d/b/a Los Alamos
    National Laboratory; G. PETER
    N A N O S; C AR OLY N MA N G ENG;
    LEE M cATEE; W ILLIAM F. EISELE;
    JAM ES R. BLAND; SAND RA
    GO GO L; and VICTORIA M cCA BE,

              Defendants-Appellees.



                              OR D ER AND JUDGM ENT *


Before O’BRIEN, PO RFILIO, and A ND ER SO N, Circuit Judges.


          Plaintiff David Lee appeals from the district court’s order denying his

request for reconsideration with respect to its earlier order dismissing his




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
complaint for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6). Having jurisdiction under 28 U.S.C. § 1291, we affirm.

                                   Background

      A. Lee’s Termination

      This case arises out of the termination of Lee’s employment with the Los

Alamos National Lab (“Lab”). According to Lee’s complaint, he began working

at the Lab in 1993 as a technical staff member and team leader of the

Radiological Engineering Team (“RET”) within the department known as

HSR-12. In A pril 2002, Sandra G ogol, a probationary employee under Lee’s

supervision, complained to James Bland, another staff member, that Lee had been

treating her unfairly. Lee maintains that these complaints were false. He also

contends, however, that Bland “harbored considerable resentment” towards him

because he had replaced B land as the RET team leader. Aplt. App. at 10. He

claims that because of this animosity, Bland encouraged Gogol to take her

complaints directly to Lee M cAtee, a high-level manager who also harbored “one

or more personal grudges” against Lee. Id. at 11. Gogol followed Bland’s advice

and told M cAtee that Lee had been mistreating her and that she wanted a job

transfer.

      Based on Gogol’s accusations, M cAtee and Bland, acting in concert with

Victoria M cCabe of the human relations office and W illiam Eisele, the HSR-12

group leader, “set in motion a chain of retaliatory events that was eventually to

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culminate in [Lee’s] termination.” Id. at 13. First, Eisele told Lee that he was to

have no further contact with Gogol. Then, M cCabe opened an investigation into

Gogol’s complaints. According to Lee, the investigation “was unfair, inadequate,

biased, and not calculated to yield reliable results,” and was instead “designed to

gather sufficient adverse material concerning [Lee] to provide a pretextual basis

for disciplining him.” Id. at 14. He concedes, however, that M cCabe interviewed

him tw ice as part of her investigation.

      In August 2002, after a meeting between M cCabe, Eisele, and M cAtee, Lee

was suspended, demoted, and formally reprimanded for various infractions that he

claims he did not commit. The Lab ultimately terminated his employment in

November 2002.

      B. The District Court Proceedings

      On September 29, 2004, Lee sued Gogol, Bland, M cAtee, M cCabe, Eisele,

and the Regents of the University of California 1 under 42 U.S.C. § 1983, claiming

that he was deprived of a property interest in his job without due process in

violation of the Fourteenth Amendment. His complaint, however, does not

describe any inadequacies in the process used to fire him. Instead, Count I, which



1
       The Lab is managed by the University of California. Lee also sued the
director of the Lab, G. Peter Nanos, and the acting deputy director, Carolyn
M angeng, based on alleged defamatory statements made about him to his
subsequent employer. Lee did not seek reconsideration of the dismissal of his
defamation-related claims, however, and Nanos’s and M angeng’s actions do not
appear to be otherwise relevant to the § 1983 claim at issue in this appeal.

                                           -3-
is his § 1983 claim, states only that the defendants “deprived [him] of rights

protected by § 1983, specifically, the right to be suspended or terminated only for

just cause.” A plt. App. at 17. The defendants moved to dismiss the § 1983 claim

based on Lee’s failure to challenge the termination process. They argued that the

Due Process Clause only protects against governmental deprivations without due

process of law , and since Lee alleged only that he was terminated without cause,

his complaint failed to state a § 1983 claim.

      In a thorough and well-reasoned opinion, dated M ay 17, 2005, the district

court considered whether the defendants w ere entitled to qualified immunity with

respect to the § 1983 claim. The court explained that first it had to determine

whether Lee had alleged a violation of his procedural due process rights. See id.

at 58; Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 516 (10th Cir. 1998). If

so, it would have to reach the next question of “whether the right allegedly

implicated was clearly established at the time of the events in question.”

Tonkovich, 159 F.3d at 516 (quotation omitted).

      Properly limiting its review to the allegations in Lee’s complaint, see Issa

v. Comp USA, 354 F.3d 1174, 1179 (10th Cir. 2003) (explaining that a plaintiff

cannot rely on briefing to supplement complaint), the district court concluded that

the defendants were entitled to qualified immunity, because the complaint did not

state a due process violation. Thus, the court did not have to decide whether the

constitutional right at issue was clearly established. As the court explained, Lee’s

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allegation that he was fired without cause was insufficient to invoke the

protections of § 1983.

             “In procedural due process claims, the deprivation by state
      action of a constitutionally protected interest in ‘life, liberty, or
      property’ is not in itself unconstitutional; what is unconstitutional is
      the deprivation of such an interest without due process of law.”

Aplt. App. at 59 (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)). Since

the complaint challenged only the propriety of the deprivation and not the

adequacy of the termination process, the district court concluded that the

complaint failed to state a procedural due process claim. 2

      The court went further, however, and found that even if Lee had challenged

the adequacy of the termination process, his § 1983 claim would still have failed

because it was evident from the complaint that Lee was accorded adequate

process. Citing Cleveland Board of Education v. Louderm ill, 470 U.S. 532, 545,

546 (1985), the court explained that “[a] pretermination hearing ‘need not be

elaborate’ nor does it need to be a full-blown evidentiary hearing. . . . All that due

process requires is ‘notice and an opportunity to respond.’” Aplt. A pp. at 59-60.

Here, the court determined that M cCabe’s pre-termination interviews of Lee

showed that he was provided with notice and an opportunity to respond, which

was all that due process required. It went on to hold that Lee’s failure to allege




2
      The court and the defendants assumed for purposes of the motion to dismiss
that Lee had a valid property interest in his continued employment with the Lab.

                                         -5-
that he had requested and been denied a post-termination hearing waived any

arguments based on the lack of such a hearing. Id. at 92; see Pitts v. Bd. of Educ.

of U.S.D. 305, 869 F.2d 555, 557 (10th Cir. 1989) (holding that plaintiff’s failure

to request pre-termination hearing waived right to challenge hearing in court);

Alvin v. Suzuki, 227 F.3d 107, 116-19 (3rd Cir. 2000) (rejecting plaintiff’s § 1983

claim because plaintiff failed to use formal grievance process).

      On M ay 27, 2005, Lee filed a motion asking the court to reconsider its

dismissal of his § 1983 claim. He argued that since a § 1983 claim carries no

exhaustion requirement, he was not required to request a post-termination hearing

before filing suit. The district court interpreted the motion as “essentially

question[ing] the correctness of [its] prior Order” and therefore “evaluate[d] [the]

motion under Rule 59(e) for manifest error.” Aplt. App. at 91. It rejected Lee’s

exhaustion argument, explaining that the issue was not one of exhaustion but

whether Lee had a § 1983 claim to begin with. “A due process violation does not

occur until a state fails to provide due process, and ‘exhaustion simpliciter is

analytically distinct from the requirement that the harm alleged . . . has

occurred.’” Id. at 92 (quoting Alvin, 227 F.3d at 116). Lee, the court explained,

lacked a constitutional claim to begin with because the complaint itself described

a process sufficient under the Fourteenth Amendment. And again, the court held

that Lee had waived any challenge to the fairness of a post-termination hearing by

failing to request such a hearing. Consequently, the court determined that its

                                          -6-
earlier order was not manifestly erroneous and denied the Rule 59(e) motion. Lee

then filed this appeal, challenging the district court’s denial of his Rule 59(e)

motion.

                                       Analysis

      It is w ell-settled that a R ule 59(e) motion should only be granted “to

correct manifest errors of law or to present newly discovered evidence.” Jennings

v. Rivers, 394 F.3d 850, 854 (10th Cir. 2005) (quotation omitted). W hen a district

court denies such a motion, we review its decision for abuse of discretion. Id.

This includes a “review to determine that the discretion was not guided by

erroneous legal conclusions.” Id. (quotation omitted).

      Lee argues on appeal that the procedures in place for Lab employees

subject to termination are so biased in favor of the Lab that a fired employee

should not be required to partake of them in order to raise a procedural due

process claim. Specifically, he argues that section 111.34 of the Lab’s

Administrative M anual, which precludes the hearing officer from issuing

subpoenas, is hopelessly unfair, because although the Lab can compel current

employees to testify on its behalf, the claimant has no means to compel unwilling

witnesses to give testimony on the claimant’s behalf. He concludes by arguing

that “a fired public employee may not be required to take advantage of a state

grievance or hearing procedure that does not provide the due process to which the

plaintiff is entitled.” Opening Br. at 15.

                                          -7-
      This argument, although based on a more specific challenge to the Lab’s

post-termination procedures, is simply another take on the exhaustion argument

that Lee asserted vigorously before the district court. W e agree with the district

court, however, that exhaustion is not the issue. Lee’s § 1983 claim fails not

because he refused to jump through the requisite hoops, but because he

affirmatively pled that he was afforded notice and an opportunity to respond

before he was terminated. W e also agree with the district court that Lee waived

any challenge to the fairness of the Lab’s post-termination hearing procedures

because he never requested a post-termination hearing. And as the district court

stated, he cannot make a futility argument with respect to the post-termination

process based on alleged unfairness in the pre-termination process. See Alvin,

227 F.3d at 119 (explaining that bias in early stages of termination process does

not prove bias in later stages). In short, for the same reasons stated by the district

court in its D ecember 12, 2005, order denying Lee’s Rule 59(e) motion, we

conclude that Lee failed to show that the court’s finding with respect to qualified

immunity was manifestly erroneous. Therefore, the court clearly acted within its

discretion in denying Lee’s Rule 59(e) motion, and its judgment must be, and is,

A FFIRME D.

                                                      Entered for the Court


                                                      Terrence L. O’Brien
                                                      Circuit Judge

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