Darr v. Town of Telluride, Colo.

• Decision Date: 03 August 2007
• Docket Number: No. 06-1227.,06-1227.
• Citation: 495 F.3d 1243
• Parties: Michael Andrew DARR, Plaintiff-Appellant, v. TOWN OF TELLURIDE, COLORADO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

495 F.3d 1243

Michael Andrew DARR, Plaintiff-Appellant, v. TOWN OF TELLURIDE, COLORADO, Defendant-Appellee.

No. 06-1227.

United States Court of Appeals, Tenth Circuit.

August 3, 2007.

Angela L. Ekker of Barnhart, Ekker & McNally, LLP, Englewood, CO, for Plaintiff-Appellant.

J. Andrew Nathan (Allyson C. Hodges with him on the brief), of Nathan, Bremer, Dumm & Myers, P.C., Denver, CO, for Defendant-Appellee.

Before MURPHY, HOLLOWAY, and TYMKOVICH, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff-Appellant Michael Darr filed a lawsuit against Defendant-Appellee Town of Telluride, Colorado, in the United States District Court for the District of Colorado. Darr's complaint asserted several claims for relief, including claims under 42 U.S.C. § 1983 that (1) Telluride violated his procedural due process rights when it deprived him of his property interests in a pre-termination hearing and continued employment; (2) Telluride deprived him of his constitutionally-protected liberty interest by impugning his good name and reputation without providing a name-clearing hearing; and (3) Telluride violated his substantive-due-process rights by arbitrarily and capriciously terminating his employment. Darr's fourth claim under review here sounds in state law: (4) Telluride breached an implied contract with Darr by terminating him without cause and without a pre-termination hearing.

In an oral ruling, the district court granted Telluride's summary-judgment motion. Appx., Vol. II, at 774-778. See Fed.R.Civ.P. 56. Darr now appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

The Town's Policies

Telluride hired Michael Darr as a deputy marshal on December 22, 2001, stating that Darr was "appointed and employed in accordance with the Town of Telluride Personnel Policies and Procedures, and the Ethics Code. . . ." Appx., Vol. I, at 286. These policies provided employees with the opportunity for notice and a hearing before having their employment terminated. Appx., Vol. II, at 507-08. But the manual Darr received stated "Undergoing Revision" on its cover and informed its readers that "[t]hese policies and procedures are not intended to serve as an employment contract between the Town and any Town employee." Id. at 455, 469.

On June 19, 2002, Telluride notified its employees that it was changing its existing policies and provided them with a draft of the proposed policies. The letter accompanying the new policies stated that "[t]he manual is a complete rewrite and revamping of the original policy. . . . Your input is essential. Please take the time to read the draft and forward any comments or questions to Susan no later than Thurs. June 27 9:00 am. (If you prefer, give me a call or stop by the office.)" Appx., Vol. I, at 193. In bold, large font, the letter also notified the town staff of an upcoming meeting about the new policies: "A Board Meeting will be held Monday[,] July 1 to Consider All Comments. Employees Who Wish to Speak with the Board are Invited and Encouraged to Come to Rebekah Hall MONDAY[,] JULY 1 at 10:30 AM. See You There." Id. (emphasis in original). The letter concluded by noting that the final version of the policies would be brought to the Town Council for adoption on July 9. Id.

Telluride did not record minutes of the July 1, 2002, meeting, but town employees submitted affidavits stating that the meeting was held and that a discussion of the draft policies took place. Appx., Vol. II, at 723, 730. There is no evidence that Darr attended the meeting or otherwise made any comments about the new policies. After holding this meeting, Telluride adopted the new policies by resolution on July 23, 2002.

Although Telluride's letter of June 19, 2002, correctly notes that the new policies substantially revised the old policies (e.g., the new policies eliminated the pre-termination hearing requirement imposed by the old policies), the new policies were substantially similar in at least one respect: in bold print, the new policies state that

[t]he policies in this manual are not intended and shall not be construed to vest any employee of the Town with any rights arising from any express or implied contract of employment. The Town reserves the right to change or rescind these policies, and to determine the application of these policies to specific circumstances. The Town further reserves the right to alter or eliminate any benefits provided to its employees. Any alteration, elimination, or revision may be made applicable to then-current as well as future employees. Appx., Vol. I, at 122.

The new policies also state on several occasions that employment with Telluride is terminable at-will. Id. For example, the policies state that "[e]mployment with the Town of Telluride is `at-will[.]' Any employee may be terminated with or without cause, a statement of reasons, or a hearing, just as any employee may resign at any time, for any reason. Nothing in these policies is intended to modify the Town's at-will employment policies." Id. Telluride also required its employees to sign a statement acknowledging that they understand this language:

I have received a copy of the Town of Telluride Personnel Policies and Procedures Manual and I understand it is my responsibility to read and comply with this document and any subsequent amendments. I further understand that employment with the Town of Telluride is "at-will[.]" Any employee may be terminated with or without cause, a statement of reasons, or a hearing, just as any employee may resign at any time, for any reason. Nothing in these policies is intended to modify the Town's at-will employment policy. [Signature line].

Appx., Vol. I, at 121.

The policies also made employees aware that they were at-will employees regardless of how Telluride handled their termination: "[e]mployment with the Town is terminable at-will. Any employee may be discharged with or without cause, at the sole discretion of and upon notice from the Town Manager. In most cases, however, dismissal will occur upon a written Notice of Dismissal . . . detailing the circumstances prompting the disciplinary action . . . ." Id. at 132. The policies' admonition that "[n]othing in these policies is intended to modify the Town's at-will employment policy," id. at 121, underscores the policies' clear effect: Telluride could terminate employees at whatever time and for whatever reason it saw fit, even though in "most cases" Telluride would notify an employee why he or she was being fired.

Telluride furnished Darr with a copy of the new policies after they were adopted. Darr admitted reviewing the new policies and signing the introduction and acknowledgment form described above. Appx., Vol. I, at 229. Darr also understood that the new policies superseded the old policies, answering "that's a given" when Telluride's counsel asked him a question to this effect. Id. at 106.

The Citizens Advisory Board

On January 21, 2003, Telluride adopted a resolution creating the Citizens Advisory Board ("CAB"). Id. at 321. CAB's function was to facilitate communication between Telluride and its citizens and to raise awareness about health and safety issues affecting the community. Id. at 322. CAB was composed of town-appointed community volunteers and did not have policy, legislative, disciplinary, or supervisory power over Telluride's decisions. Id. at 323-24. Conversely, although Telluride drafted and adopted CAB's mission statement, which included objectives such as making recommendations to the Town concerning marshal policies, Telluride did not offer CAB guidance on how to conduct its operations. For example, the town mayor when the CAB was created testified that CAB lacked operating procedures and that Telluride never instructed CAB about how to conduct its operations. Id. at 246, 247.

The town mayor described CAB's authority in the negative: "[t]his was not a legislative or public policy board, had no authority. And . . . it is not a police commission that investigates whether Officer X should or should not have shot so-and-so as he left his apartment carrying an AR 16." Id. at 248. Darr's counsel asked the former mayor whether "it [was] part of the discussion [when creating the CAB] that the CAB would be involved in any disciplinary actions of police officers[.]" He replied: "[i]t certainly would not be." Id.

The Events Precipitating Darr's Termination

On February 25, 2003, CAB met to discuss several topics concerning Telluride's policing methods. Appx., Vol. I, at 326. Several citizens complained, and Darr was one of the marshals identified. Id. at 184. Darr alleges that CAB's chairman stated that Darr "had left [his] previous employment under `suspicious circumstances[,]' that [he] had improperly displayed a handgun at a golf course and that [he] had `poached' or stolen a game of golf." Appx., Vol. II, at 524.

Telluride received several other complaints about Darr's conduct. For example, the former mayor testified that restaurant and bar owners complained that Darr intimidated their customers and that he performed bar checks "in a very rough and abusive manner." Appx., Vol. I, at 238. Others complained that he "created pandemonium" in another restaurant and that he improperly searched or interrogated a woman who had just fallen out of a window. Id. Moreover, the town manager testified that he received several complaints about Darr and that "it became obvious that [Darr] had a difficult time communicating and interacting with a good chunk of the public of this community." Id. at 367.

CAB's chairman again made Darr's controversial policing methods a topic of discussion in a local radio broadcast. After being asked about the variety of allegations against Darr, the chairman explained: "[o]verzealous, controlling, uh, a lot of civil rights violations in my opinion, illegal searches and seizures, uh, trying to be an undercover cop, sitting in bars pretending he's a cable guy and...