Case Information
*1 Before TACHA , ANDERSON , and KELLY , Circuit Judges.
*2
This pro se appeal concerns a public employee’s free speech and due process rights. R. Mark Armstrong worked as an environmental analyst for Wyoming’s Department of Environmental Quality (DEQ). He was hired to inspect and issue permits for waste facilities, but in 2007, he was fired for incurring some $2,500.00 in personal charges on his state-issued cell phone. Mr. Armstrong was reinstated by an administrative review board, but the DEQ placed him on paid administrative leave while it appealed that ruling in state court. In the meantime, Mr. Armstrong accepted another position and tendered his resignation, conditioned on the DEQ’s satisfaction of several demands. The DEQ accepted his resignation, paid him $42,784.44, but complied with none of Mr. Armstrong’s demands. That prompted this suit.
***
In a four count complaint, Mr. Armstrong alleged the DEQ’s failure to comply with the terms of his resignation constituted wrongful termination. Characterizing the cell phone issue as a pretext for retaliation, he claimed he was really fired for exercising his First Amendment rights by expressing ethical concerns about the DEQ’s issuance of landfill permits. He further claimed his termination deprived him of property and liberty interests in his job and professional reputation without due process. Additionally, Mr. Armstrong alleged defendants breached the implied covenant of good faith and fair dealing, as demonstrated by the adverse circumstances surrounding his employment and *3 dismissal. Finally, he asserted defendants fired him in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq .
On defendants’ motion, the district court dismissed the matter for lack of
subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), and for failure to
state a claim under Fed. R. Civ. P. 12(b)(6). The court initially determined that
Mr. Armstrong failed to state a plausible First Amendment claim under the
Supreme Court’s analysis set forth in
Garcetti v. Ceballos
,
Next the court held that Mr. Armstrong failed to allege a cognizable due
process claim for deprivations of either a property or liberty interest. With regard
to the property claim, the court ruled that Mr. Armstrong had no protected
property interest in his so-called “settlement contract,” which he implied from the
terms of his conditional resignation, because there was no written agreement to
satisfy Wyoming’s statute of frauds, Wyo. Stat. Ann. § 1-23-105, and, in any
event, Mr. Armstrong’s terms were unenforceable,
id.
, § 1-41-106. Further, the
court explained that Mr. Armstrong could claim no protected interest in continued
employment because he resigned from the DEQ, accepted a different job, and
moved to another state. Additionally, although Mr. Armstrong disavowed a
constructive discharge claim, the court pointed out that he could not prevail on
any such claim since he voluntarily resigned. As for Mr. Armstrong’s liberty
interest in his professional reputation, the court ruled he failed to allege any false
statements that foreclosed other employment opportunities.
See Sandoval v. City
of Boulder
,
Turning to Mr. Armstrong’s third claim brought under the implied covenant
of good faith and fair dealing, the court ruled it was barred by sovereign
immunity. The court recognized the Wyoming Government Claims Act waives
immunity and provides the procedure for bringing certain claims,
see
Wyo. Stat.
Ann. §§ 1-39-117 and 1-39-104(a), but tortious breach of the implied covenant of
good faith and fair dealing is not one of them.
id.
, § 1-39-104(a);
Hoff v. City
of Casper-Natrona Cnty. Health Dep’t
,
Lastly, the court determined that Mr. Armstrong’s ADEA claim was barred
by the Eleventh Amendment. In so holding, the court reasoned the State had not
consented to suit and Mr. Armstrong failed to invoke any valid waiver of
immunity.
See Migneault v. Peck
,
***
On appeal, Mr. Armstrong maintains he was fired for exercising his First Amendment rights and denied his property and liberty interests without due process. He also invokes general contract principles and contends there are two enforceable contracts that bind the State to the terms of his conditional resignation. See Aplt. Br. at 35. He does not, however, address his claims brought under the ADEA or the implied covenant of good faith and fair dealing.
We conclude Mr. Armstrong has waived appellate review of his claims for
breach of the implied covenant of good faith and the ADEA.
See Becker v. Kroll
,
As for Mr. Armstrong’s claims asserting free speech and due process
violations, we conclude under a de novo standard of review that dismissal was
proper.
See Peterson v. Grisham
,
Entered for the Court Stephen H. Anderson Circuit Judge
Notes
[*] After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. 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.
[1] The
Garcetti/Pickering
analysis is a five-prong test that evaluates:
(1) whether the speech was made pursuant to an employee’s official
duties; (2) whether the speech was on a matter of public concern;
(3) whether the government’s interests, as employer, in promoting
the efficiency of the public service are sufficient to outweigh the
plaintiff’s free speech interests; (4) whether the protected speech was
a motivating factor in the adverse employment action; and
(5) whether the defendant would have reached the same employment
decision in the absence of the protected conduct.
Dixon v. Kirkpatrick
,