107 F.4th 1121
10th Cir.2024Background
- Dr. Anthony Tufaro served as Chief of Plastic & Reconstructive Surgery and Professor at the University of Oklahoma (OU) from 2017 to 2019 as a non-tenured, consecutive-term faculty member.
- Tufaro's employment contract incorporated the OU Faculty Handbook, differentiating between "termination" and "non-renewal," with specific notice periods for non-renewal.
- In 2019, after Tufaro raised internal complaints about billing and patient care practices within OU's Medical and Dental Colleges, OU decided not to renew his contract, giving him proper notice and ending his employment after 180 days.
- Tufaro sued OU, his supervisors, and others, bringing claims for wrongful termination, First Amendment retaliation, Fourteenth Amendment deprivations (property/liberty), breach of contract, and Burk tort under Oklahoma law, as well as a state constitutional speech claim.
- The district court dismissed or rejected all of Tufaro's claims at the motion to dismiss and summary judgment stages, finding no breach or constitutional violation, leading to this appeal.
Issues
| Issue | Plaintiff’s Argument | Defendant’s Argument | Held |
|---|---|---|---|
| Breach of Contract (Handbook/Non-renewal) | OU breached by “terminating” Tufaro in violation of the Handbook’s notice/procedure requirements. | OU followed the non-renewal procedure in the Handbook, providing required notice; non-renewal ≠ termination. | No breach; OU acted within Handbook’s terms. |
| § 1983 First Amendment Retaliation | Internal complaints about misconduct on public concern topics were protected speech. | Complaints were made within official job duties, not as a private citizen—thus not protected by the First Amend. | Not protected speech; summary judgment for defendants. |
| § 1983 Fourteenth Amendment (Property/Liberty) | Had a property interest in contract renewal and suffered liberty/reputation harm via OU's actions. | No property interest — non-tenured contract didn’t guarantee renewal; liberty claim deficient/factually unsupported. | No property or liberty interest; claim fails. |
| Burk Tort (Wrongful Termination/Public Policy) | Tufaro was an at-will employee protected under Burk; non-renewal for exposing misconduct violated policy. | Employment was not at-will due to Handbook’s notice provisions/structure; thus Burk tort inapplicable. | Not at-will; Burk tort not available; claim dismissed. |
| Federal Jurisdiction Over Burk Tort | District court should have remanded the Burk claim to state court after dismissing federal claims. | Plaintiff waived remand by not raising it below and pursued federal merits to judgment. | No abuse of discretion; jurisdictional retention affirmed. |
Key Cases Cited
- Will v. Mich. Dep’t of State Police, 491 U.S. 58 (states and state officials in their official capacity are not "persons" under § 1983)
- Garcetti v. Ceballos, 547 U.S. 410 (First Amendment does not protect public employee speech made pursuant to official duties)
- Board of Regents v. Roth, 408 U.S. 564 (property interests are defined by state law and require a legitimate claim of entitlement)
- Burk v. K-Mart Corp., 770 P.2d 24 (recognizes wrongful discharge tort for at-will employees terminated in violation of public policy)
- Lane v. Franks, 573 U.S. 228 (public employee speech on matters of public concern is protected only if made as a citizen)
- Pickering v. Bd. of Educ., 391 U.S. 563 (establishes balancing test for public employee First Amendment claims)
- United Mine Workers v. Gibbs, 383 U.S. 715 (pendent/supplemental jurisdiction and presumption of remand when federal claims dismissed)
- Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (district court presumption to decline supplemental jurisdiction when federal claims dropped)