McDonald v. Wise, 769 F.3d 1202

Background

McDonald was appointed by Denver Mayor Hancock in 2011 as a mayoral appointee (served at the Mayor’s pleasure); he later worked in the Dept. of Excise and Licenses and received performance-plan documentation.
Police Officer Leslie Wise, who served on the Mayor’s security detail, had numerous voluntary personal contacts with McDonald (many phone calls, gift exchange, church visit); she recorded two November 2011 calls without his knowledge.
In May 2012 Wise reported to city officials that McDonald sexually harassed her; city officials gave McDonald the choice to resign or be fired and terminated him without a pre- or post-termination hearing.
City officials and the Mayor’s press secretary publicly stated McDonald was terminated for “serious misconduct,” and the City opposed his unemployment claim; an administrative hearing later found McDonald “not at fault.”
McDonald sued under 42 U.S.C. § 1983 (due process—property and liberty interests), breach of contract, CORA/privacy, and defamation (against Wise). District court dismissed all claims; the Tenth Circuit affirmed in part and reversed in part.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Existence of a property interest in continued employment	McDonald contends the Mayor orally promised employment for the Mayor’s term and the appointment letter created an expectancy	City argues mayoral appointees serve at-will under the Denver Charter so no property interest exists	Held: No property interest; at-will appointment under City charter controls, dismissal affirmed
Liberty interest (stigma-plus) and adequacy of process	McDonald alleges public statements that he was fired for serious misconduct stigmatized him and he received no name-clearing hearing	City asserts statements were accurate (allegations) and that unemployment hearing sufficed	Held: Sufficient stigma-plus pleading; unemployment hearing was not an adequate substitute for a name-clearing hearing; due-process liberty claim survives against the Mayor and the City
Breach of contract based on oral promise	McDonald claims an oral agreement and appointment letter created a contract forbidding termination except for cause	City argues charter limits mayoral appointment power and bars inference of contract contrary to charter	Held: No enforceable contract; charter controls and claim dismissed
Defamation and CGIA immunity for Officer Wise	McDonald asserts Wise knowingly made false allegations to employer (willful and wanton; actual malice) damaging his reputation	Wise contends qualified privilege and CGIA immunity bar the claim; district court dismissed	Held: Reversed as to Wise — plaintiff pleaded facts sufficient to plausibly infer willful/wanton conduct and actual malice; claim survives at Rule 12(b)(6) stage

Key Cases Cited

TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175 (10th Cir. 2007) (12(b)(6) plausibility standard and treating factual allegations as true)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must state a claim plausible on its face)
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (1972) (property interests in public employment derive from state law)
Driggins v. City of Okla. City, Okla., 954 F.2d 1511 (10th Cir. 1992) (representations by officials cannot create property interests contrary to statutory/charter limits)
Workman v. Jordan, 32 F.3d 475 (10th Cir. 1994) (elements of stigma-plus liberty interest claim)
Mathews v. Eldridge, 424 U.S. 319 (1976) (balancing test for required procedural protections)
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) (municipal liability under § 1983 requires a policy or final policymaker decision)
Harlow v. Fitzgerald, 457 U.S. 800 (1982) (qualified immunity standard)
Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504 (10th Cir. 1998) (causation element in § 1983 and limits on liability for speakers not involved in deprivation)
Wisconsin v. Constantineau, 400 U.S. 433 (1971) (notice and opportunity to be heard when government action stigmatizes reputation)