Ellis G. Sheker v. Mike Grimes David Treib, 56 F.3d 78, 10th Cir. (1995)

56 F.
3d 78
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a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.
Ellis G. SHEKER, Plaintiff-Appellant,

v.
Mike GRIMES; David Treib, Defendants-Appellees.
No. 94-6312.
(D.C. No. CIV-93-305-L)
United States Court of Appeals, Tenth Circuit.

June 5, 1995.
1
Before EBEL and BARRETT, Circuit Judges, and KANE,** District Judge.
ORDER AND JUDGMENT1

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) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Plaintiff Ellis Sheker appeals from orders dismissing his due process claim and
granting defendants summary judgment on his First Amendment retaliation
claim. We affirm.
Plaintiff was employed by the State of Oklahoma Department of Public Safety

as a Capitol Patrol Police Officer with the rank of sergeant. He is a member of
the Fraternal Order of Police (FOP) and a member of a class represented by the
FOP that brought a lawsuit for declaratory relief. Defendant Mike Grimes is
plaintiff's third line supervisor. Defendant David Treib is plaintiff's second line
supervisor.
On September 7, 1992, plaintiff handled a domestic violence incident. About

two weeks later, Treib disciplined plaintiff for his handling of the incident by
limiting his duties. Plaintiff later met with Treib and Grimes to discuss a
grievance he had filed against Treib over Treib's response to the incident.
Although Grimes stated plaintiff had used the wrong grievance procedure, he
did listen to plaintiff's recitation of the events of September 7. Grimes then
informed plaintiff that he had acted outside his jurisdiction. Although new
legislation gave Capitol Patrol statewide jurisdiction, Grimes stated he would
decide plaintiff's jurisdiction. He criticized plaintiff's decision to intervene in
the domestic dispute because it had tied up two of four of the officers for half
the shift. Grimes created a new shift for plaintiff and gave him a new area of
assignment.
6
Plaintiff commenced this 42 U.S.C.1983 action, alleging that by, in effect,

demoting him, defendants deprived him of property without due process of law
and of his rights to association and speech. Defendants moved to dismiss under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim. The district court granted the
motion as to the due process claim. It later granted defendants' motion for
summary judgment on the First Amendment retaliation claim.
"We review the sufficiency of a complaint de novo and will uphold a dismissal
of a complaint only when it appears that the plaintiff can prove no set of facts in
support of the claims that would entitle him to relief." Coosewoon v. Meridian
Oil Co., 25 F.3d 920, 924 (10th Cir.1994). "We must accept all the wellpleaded allegations of the complaint as true and must construe them in the light
most favorable to the plaintiff." Id.
To determine whether there has been a denial of procedural due process, we

must first ask whether the individual had a protected interest to which due
process protections were applicable and, if so, whether the individual was
afforded appropriate process. Farthing v. City of Shawnee, 39 F.3d 1131, 1135
(10th Cir.1994). Property interests are "created, defined and governed by state
law." Bailey v. Kirk, 777 F.2d 567, 573 (10th Cir.1985). We must determine
whether state law gave plaintiff "a legitimate claim of entitlement" to, rather
than a unilateral expectation of or abstract need or desire for, the terms of
employment of which plaintiff claims he was deprived. See Board of Regents
of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
The complaint based the claim of a property interest on Okla. Stat. tit. 74,
841.13 (Supp.1993)(renumbered at Okla. Stat. tit. 74, 840-6.5 (Supp.1994)).
This statute provided in part that the Oklahoma Merit Protection Commission
generally does not have jurisdiction to entertain appeals of transfers or changes
in duties unless "it is established that the action was clearly taken for
disciplinary reasons and to deny the employee the right of appeal."
10
Contrary to plaintiff's assertion, the quoted language did not limit the
employer's power to transfer or change duties for disciplinary reasons and to
deny the right of appeal. Rather, it provided the Commission jurisdiction to
entertain appeals challenging such changes.2 However, a property interest is not
created merely because an employee is provided with a right to appeal an
employment decision, see Campbell v. Mercer, 926 F.2d 990, 993 (10th
Cir.1991), or to file a grievance, see Carnes v. Parker, 922 F.2d 1506, 1511
(10th Cir.1991). Rather, "only state law regarding substantive restrictions on
the employer's discretion is relevant to the property interest determination."
Campbell, 926 F.2d at 993. "[M]eaningful limitations on the employer's
authority" must be imposed to create a property interest. Phillips v. Calhoun,
956 F.2d 949, 953 (10th Cir.1992). Examples of substantive restrictions or
limitations creating a property interest include requirements that discharges be
based on cause, or on "merit and fitness alone." Patrick v. Miller, 953 F.2d
1240, 1245 (10th Cir.1992).
11
Section 841.13 placed substantive restrictions on the employer's discretion to

discharge, suspend without pay, and demote. While the complaint alleged that
the change in plaintiff's duties and duty station was, in effect, a demotion, and
that, upon an audit of his position, he will be demoted, it did not allege that he
actually was demoted. Plaintiff has pointed to no provision in the statute that
limited the employer's discretion to change an employee's duties if such change
did not amount to a demotion. Even a liberal construction of the statute cannot
"add new provisions, substantive or otherwise, which the legislative tribunal in
the exercise of its permitted choice omitted or withheld." E.C. Schroeder Co. v.
Clifton, 153 F.2d 385, 390 (10th Cir.), cert. denied, 328 U.S. 858 (1946).
12
Further, section 841.13 provided that "[a] state agency shall have sole and final
authority to designate the place or places where its employees shall perform
their duties." Thus, no substantive limitations were placed on the employer's
discretion to change plaintiff's duty station.
13
We conclude plaintiff has shown no property interest in his duties or duty

station. Therefore, we need not address whether he was provided with
appropriate process. The district court correctly dismissed the due process
claim. 3
14
Turning to the First Amendment retaliation claim, we review the grant of

summary judgment de novo, applying the same legal standard as the district
court under Fed.R.Civ.P. 56(c). Universal Money Ctrs., Inc. v. AT & T, 22 F.3d
1527, 1529 (10th Cir.), cert. denied, 115 S.Ct. 655 (1994). "Summary judgment
is appropriate 'if 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.' " Id. (quoting Rule 56(c)). We must examine the
record and reasonable inferences drawn therefrom in the light most favorable to
the nonmoving party. Id. The moving party has the initial burden to show an
absence of evidence supporting the nonmovant's case. Hatfield v. Board of
County Comm'rs, No. 93-8094, 1995 WL 215267, at * 3 (10th Cir. Apr. 11,
1995). Once this burden is met, the nonmovant has the burden of showing there
is sufficient evidence on which a jury could reasonably find in his favor. Id.
15
To prevail on a First Amendment retaliation claim, an employee initially must

show 1) his speech involved a matter of public concern, 2) his interest in the
speech outweighed the employer's interest in effective and efficient fulfillment
of its public responsibilities, and 3) the protected speech was a motivating
factor in an adverse action against him. Bisbee v. Bey, 39 F.3d 1096, 1100
(10th Cir.1994), petition for cert. filed, 63 U.S.L.W. 3707 (U.S. Mar. 17, 1995)
(No. 94-1541). If the employee meets this burden, he can prevail only if the
employer fails to show it would have reached the same decision absent the
protected activity. Id. The only issue is whether plaintiff made a sufficient
showing that his membership in the FOP and involvement with the lawsuit
were motivating factors in the change in his duties and duty station.
16
Grimes' undisputed testimony is that he found out about the FOP lawsuit after
he was served with plaintiff's complaint, and did not know that plaintiff was a
member of the FOP even after the filing of that complaint. "Allegedly protected
speech cannot be proven to motivate retaliation, if there is no evidence that the
defendants knew of the protected speech." O'Connor v. Chicago Transit Auth.,
985 F.2d 1362, 1370 (7th Cir.1993), petition for cert. filed, (U.S. July 12, 1993)
(No. 93-5212); cf. Ramirez v. Oklahoma Dep't of Mental Health, 41 F.3d 584,
596 (10th Cir.1994)(holding proof employer knew of protected activity, plus
close proximity of adverse employment action, sufficiently probative of
retaliatory motive). We therefore conclude summary judgment was
appropriately granted in favor of defendant Grimes on the First Amendment
retaliation claim.
17
Defendant Treib conceded that he was aware of the membership of the FOP
and that the lawsuit had been filed. However, while plaintiff asserted his belief
that Treib's actions were taken solely because of plaintiff's exercise of
expressive association, his belief, without supporting evidence, is insufficient to
establish a retaliatory motive. See Candelaria v. EG & G Energy
Measurements, Inc., 33 F.3d 1259, 1261 (10th Cir.1994). Plaintiff admitted that
Treib never told plaintiff he objected to the lawsuit. Further, all plaintiff could
offer when asked how he knew Treib objected to the lawsuit was that the
"entire organization" was very upset when the lawsuit was filed. Appellees'
App. at 67.4 This evidence does not raise an inference that Treib retaliated
against plaintiff for his involvement with the lawsuit.
18
That leaves the question whether the timing of the alleged disparate
punishment and infringement of plaintiff's administrative rights is
circumstantial evidence from which a jury could infer that Treib retaliated
against him. See Bisbee, 39 F.3d at 1101 (noting retaliation frequently proven
by circumstantial evidence). The FOP was formed about three years before the
events in question, and the lawsuit was filed about one year before. This is not
the kind of "close temporal proximity" that raises an inference of retaliatory
motive. See Smith v. Maschner, 899 F.2d 940, 948, 949 (10th Cir.1990)
(adverse action followed protected activity "immediately"); Ramirez, 41 F.3d at
596 (adverse action followed protected activity by one and one-half months);
cf. Candelaria, 33 F.3d at 1262 (no inference where protected activity preceded
adverse action by three years). Consequently, we conclude the district court
correctly granted defendant Treib summary judgment on the First Amendment
retaliation claim. In light of our disposition, we need not address whether
defendants are entitled to qualified immunity.
19
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
**
Honorable John L. Kane, Jr., Senior District Judge, United States District Court
for the District of Colorado, sitting by designation
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 the court's General
Order filed November 29, 1993. 151 F.R.D. 470
It does not appear section 841.13 would have allowed an appeal unless the
transfer or change in duties constituted a discharge, suspension, or demotion.
The title of this section was "Discharge, suspension or demotion of employee-Notice--Appeal--Hearing--Findings." The title of a statute can aid in resolving
any ambiguity in the statute's text. INS v. National Ctr. for Immigrants' Rights,
Inc., 502 U.S. 183, 189 (1991). This title suggests employment actions that did
not constitute a discharge, suspension, or demotion were not covered by the
statute. Further support for this conclusion is found in section 841.13, which
provided, "[i]t is the purpose of this section to provide a system for the prompt,
fair, and equitable disposition of appeals by permanent classified employees
who have been demoted, suspended, or discharged." As explained below,
plaintiff did not allege he actually was demoted
3
We disagree that the district court required plaintiff to exhaust state remedies to
bring this claim
Although in the excerpt of plaintiff's deposition testimony provided by

defendants plaintiff was asked for specific instances that established the "entire
organization" was angry about the lawsuit, neither party provided us with
plaintiff's answer to the question

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56 F.

Ellis G. SHEKER, Plaintiff-Appellant,

United States Court of Appeals, Tenth Circuit.

ORDER AND JUDGMENT1

Plaintiff was employed by the State of Oklahoma Department of Public Safety

On September 7, 1992, plaintiff handled a domestic violence incident. About

Plaintiff commenced this 42 U.S.C.1983 action, alleging that by, in effect,

To determine whether there has been a denial of procedural due process, we

Section 841.13 placed substantive restrictions on the employer's discretion to

We conclude plaintiff has shown no property interest in his duties or duty

Turning to the First Amendment retaliation claim, we review the grant of

To prevail on a First Amendment retaliation claim, an employee initially must

Although in the excerpt of plaintiff's deposition testimony provided by

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