Walker v. City of Fort Morgan, 145 F.3d 1347, 10th Cir. (1998)

145 F.
3d 1347
NOTICE: Although citation of unpublished opinions remains
unfavored, unpublished opinions may now be cited if the
opinion has persuasive value on a material issue, and a
copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties.
See General Order of November 29, 1993, suspending 10th
Cir. Rule 36.3 until December 31, 1995, or further order.
Judith E. WALKER, Plaintiff-Appellant,

v.
CITY OF FORT MORGAN, a Colorado municipality,
by and through
the Mayor and City Council for the City of Fort
Morgan;
David Yamada, in his official capacity as
Superintendent of
Public Works, also known as City Superintendent,
Defendants-Appellees.
No. 97-1272.
United States Court of Appeals, Tenth Circuit.
April 13, 1998.
Before ANDERSON, McKAY, and LUCERO, Circuit

Judges.
ORDER AND JUDGMENT*

1
2 After examining the briefs and appellate record, this panel

has determined unanimously to grant the parties' request
for a decision on the briefs without oral argument. See
Fed.R.App.P. 34(f); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
3 Plaintiff brought suit against the City of Fort Morgan (City)

and David Yamada, the City Superintendent, alleging
violation of the Americans with Disabilities Act, the Age
Discrimination in Employment Act, the Fair Labor
Standards Act, Title I of the Civil Rights Act of 1991, and
42 U.S.C. 1983. The parties are familiar with the facts
underlying this employment dispute and with the
procedural history of this case. We will not repeat them
here. The only issue raised by plaintiff on appeal is
whether the district court's decision to order a directed
verdict on plaintiff's 1983 claim is in accordance with
applicable law.1
4 We review de novo the district court's determination of a

motion for judgment as a matter of law, applying the same
standard as the district court. See Haines v. Fisher, 82
F.3d 1503, 1510 (10th Cir.1996). Under this standard,
judgment as a matter of law is warranted only if the
evidence points but one way and is susceptible to no
reasonable inferences supporting the party opposing the
motion. Id. "We do not weigh the evidence, pass on the
credibility of the witnesses, or substitute our conclusions
for that of the jury. However, we must enter judgment as
a matter of law in favor of the moving party if 'there is no
legally sufficient evidentiary basis ... with respect to a
claim or defense ... under the controlling law.' " Harolds
Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533,
1546-47 (10th Cir.) (quoting Fed.R.Civ.P. 50(a)(1)), cert.
denied, --- U.S. ----, 117 S.Ct. 297, 136 L.Ed.2d 216 (1996)
(citations omitted).
5 On appeal, plaintiff contends she was deprived of a

property interest in her employment without due process
contrary to 42 U.S.C. 1983. Our analysis of this issue
involves a two-step inquiry: (1) did plaintiff possess a
property interest in her employment making due process
protections applicable; and, (2) if she did have such an
interest, did she receive all the process to which she was
entitled. See Watson v. University of Utah Med. Ctr., 75
F.3d 569, 577 (10th Cir.1996). Plaintiff must first
demonstrate that she had a protected property interest in
her city employment.
6 The question of whether an employee has a protected

property interest in employment is a question of state
law. See id. Under Colorado law, an employee who is
terminable at will may be dismissed without cause and,
as long as no constitutional violation has occurred, no
judicial review of the termination is available. See
Fremont RE-1 Sch. Dist. v. Jacobs, 737 P.2d 816, 820
(Colo.1987) (en banc). An at-will employee, or one who
serves at the pleasure of the employer, "generally may be
discharged at any time without cause or formal
procedure." Johnson v. Jefferson County Bd. of Health,
662 P.2d 463, 471 (Colo.1983) (en banc). "[T]he traditional
rule with respect to local government employees has
been that: '[L]ocal government employees hold their posts
at the pleasure of the proper local government authorities
and can be dismissed without cause, in the absence of
restrictions or limitations provided by law.' " Fremont RE-
1 Sch. Dist., 737 P.2d at 820 (quoting 2A C. Antieau,
Municipal Corporation Law 22.158, at 22-239 (1987)).
The question thus becomes, whether plaintiff was an at-
will employee or whether restrictions or limitations
provided by law have altered her otherwise at will status.
7 Plaintiff argues that the City's personnel handbook

created her property interest in her employment because
it contained express provisions, including progressive
disciplinary policies and procedures, as well as
termination limitations. In Continental Air Lines, Inc. v.
Keenan, 731 P.2d 708, 711-12 (Colo.1987) (en banc), the
Colorado Supreme Court explained the circumstances
under which an at will employee can enforce the
termination procedures in an employee manual. There are
two alternatives:
8
[t]he employee may be entitled to relief under ordinary
contract principles if [she] can demonstrate, first, that in
promulgating the termination procedures the employer was
making an offer to the employee--that is, the employer
manifested his willingness to enter into a bargain in such a
way as to justify the employee in understanding that [her]
assent to the bargain was invited by the employer and that
the employee's assent would conclude the bargain,
Restatement (Second) of Contracts 24 (1981)--and second,
that [her] initial or continued employment constituted
acceptance of and consideration for those procedures.
9 Id. at 711. Plaintiff has produced no evidence in this

regard.
10 The second theory under which such a plaintiff may

recover is under a theory of promissory estoppel. There,
the plaintiff must
11
demonstrate that the employer should reasonably have
expected the employee to consider the employee manual as
a commitment from the employer to follow the termination
procedures, that the employee reasonably relied on the
termination procedures to [her] detriment, and that injustice
can be avoided only by enforcement of the termination
procedures. Unless this preliminary factual showing is
sufficient to overcome the presumption of an employment
terminable at the will of either party, the employee's cause of
action should fail.
12 Id. at 712 (citations omitted). Again, plaintiff has

presented no evidence to support this theory. She cannot,
therefore, maintain her 1983 claim on the basis of terms
and conditions contained in the City employee manual.
13 Plaintiff's second argument is that, under the City charter,
only the city council had the authority to dismiss her and
that, her termination by defendant Yamada, the
Superintendent of Public Works, was a denial of due
process. Plaintiff points particularly to the language of the
charter which provides that, other than the elective
officers of the city, "[a]ll other persons in the service of
the city or any department thereof, are hereby declared to
be employees, they shall be appointed by the council and
shall be subject to removal by the council at any time, at
its pleasure, and without cause except as otherwise
provided by this Charter." Appellant's Br. Ex. 2 at C-8. We
do not read this language as creating exclusive authority
on the part of the city council to hire and fire, and, in fact,
the language underscores the at-will nature of city
employment. That aside, however, the district court found
that the council had authority to delegate this power, see
R. Vol I Trial Tr. at 18. Mr. Yamada had testified that the
authority had been delegated to him. See id. at 17.
Plaintiff presented no evidence to rebut this testimony.
14 Because the evidence on the 1983 issue supports only

the defendants and is susceptible to no reasonable
inferences supporting plaintiff, see Haines, 82 F.3d at
1510, the judgment of the United States District Court for
the District of Colorado is AFFIRMED.
* 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 The 1991 amendments to the Federal Rules of Civil

Procedure abandoned the term "directed verdict" in favor
of the term "judgment as a matter of law in jury trials."
See Fed.R.Civ.P. 50

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145 F.

Judith E. WALKER, Plaintiff-Appellant,

United States Court of Appeals, Tenth Circuit.

April 13, 1998.

Before ANDERSON, McKAY, and LUCERO, Circuit

ORDER AND JUDGMENT*

2 After examining the briefs and appellate record, this panel

3 Plaintiff brought suit against the City of Fort Morgan (City)

4 We review de novo the district court's determination of a

5 On appeal, plaintiff contends she was deprived of a

6 The question of whether an employee has a protected

7 Plaintiff argues that the City's personnel handbook

9 Id. at 711. Plaintiff has produced no evidence in this

10 The second theory under which such a plaintiff may

12 Id. at 712 (citations omitted). Again, plaintiff has

14 Because the evidence on the 1983 issue supports only

* This order and judgment is not binding precedent, except

1 The 1991 amendments to the Federal Rules of Civil

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