UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

MITCHELL FOX-RIVERA,

Plaintiff-Appellant,

v. No. 14-1303 (D. Colorado)

COLORADO DEPARTMENT OF PUBLIC HEALTH & ENVIRONMENT, LABORATORY SERVICES DIVISION; DAVID BUTCHER; CYNTHIA SILVA GURBACH, Defendants-Appellees. (D.C. No. 1:14-CV-00737-RBJ)

ORDER AND JUDGMENT *

Before GORSUCH , McKAY , and BACHARACH , Circuit Judges.

This appeal arises from a dismissal for failure to state a valid claim. The plaintiff, Mr. Mitche ll Fox-Rivera, worked at a government laboratory.

* The Court has determined that oral argument would not materially aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decide d the appeal based on the briefs. Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. FILED United States Court of Appeals Tenth Circuit 

### April 23, 2015
Elisabeth A. Shumaker Clerk of Court2 After mistakes were made, laboratory supervisors allegedly blamed Mr. Fox-Rivera and fi red him. If the firing impugned Mr. Fox-Rivera’s reputation, his right to due process would be implicated. See McDonald v.
Wise , 769 F.3d 1202, 1212 (10th Ci r. 2014). In this cas e, we must decide: Did the State impugn Mr. Fox-Rivera’s reputation when firing him for failure to carry out his job duties? We conclude that the State did not impugn Mr. Fox-Rivera’s reputatio n and affirm the dismissal. I. The Mistakes, the Firing, and the Suit Mr. Fox-Rivera’s laboratory wa s responsible fo r testing blood samples from individuals suspected of drunk driving. Authorities learned of mistakes in the testing process and fired Mr. Fox-Rivera. The press covered these testing errors and quot ed authorities w ho had pinned the blame on Mr. Fox-Rivera. These press reports led Mr. Fox-Rivera to sue under 42 U.S.C. § 1983, clai ming a deprivation of due process. The district court dismissed the suit, and Mr. F ox-Rivera appealed. On appeal, Mr. Fox-Rivera argues th at the allegations were suffic ient to state a claim for a liberty interest in his reputation. II. Claim Against the Laboratory The laboratory itself wa s one of the defendants . The district court held that the labora tory was an arm of the stat e, entitled to dismissal based on Eleventh Amendment im munity. Mr. Fox-Rivera ha s not challenged this part of the ruling.3 III. Claim Against the Tw o Individual Defendants Mr. Fox-Rivera also sued two individuals: Mr. David Butcher and Ms. Cynthia Gurbach. The claims against these two individuals were based on a denial of due process. To survive a motion to dismiss, Mr. Fox-Rivera had to allege deprivation of a property inte rest or a liberty interest. Hill v. Ibarra , 954 F.2d 1516, 1524 (10th Cir. 1992). The di strict court dismissed the claims, holding that the individual defendants did not deprive Mr. Fox-Rivera of either right. He does not dispute the absence of a pr operty interest, arguing instead that the defendants deprived hi m of a protected liberty interest. We disagree. We review the dismissal de novo, focusing on whether Mr. FoxRivera’s complaint states a plausible claim for relief. McDonald v. Wise , 769 F.3d 1202, 1210 (10th Ci r. 2014). To dete rmine the plausi bility of the claim, we assume the trut h of all well-pleaded alle gations in the complaint. Albers v. Bd. of Cnty. Co mm’rs of Jefferson Cnty., Colo. , 771 F.3d 697, 700 (10th Cir. 2014). Applying this standard, we may as sume that Mr. Fox-Rivera had a protected “liberty interest in his good name and repu tation as they related to his continued employment.” McDonald , 769 F.3d at 1212. With this assumption, however, Mr. Fox-Rivera woul d still need to plead facts indicating infringement of this liberty interest. To satisfy this pleading4 burden, he had to allege a statemen t impugning his good name, reputation, honor, or integrity. Id. The district court determined that Mr. Fox-Rivera had failed to satisfy this burden. In challenging this determination, Mr. Fox-Rivera points to five of the defe ndants’ alleged statements:
1. “[A]n investigation had been conducted that found that Mr. Fox-Rivera was [sic] wasn’t putting enough bl ood into the device used to determin e blood-alcohol content.”
2. “Mr. Fox-Rivera had failed to follow test protocols, opening the door for atto rneys to chal lenge drunk-dri ving cases.”
3. “Mr. Fox-Rivera was the caus e of and responsible for the flawed . . . blood-alcohol te sting of drunk driver blood specimens.”
4. The department “had reanalyzed 1,300 of the 1,700 samples that it was retesting as a resu lt of errors by Mr. Fox-River [sic], and identified 11 samples wi th ‘significant’ errors, all in the favor of defendants acc used of drunk-driving.”
5. Ms. Gurbach stated in an email that Mr. Fox-Rivera had been terminated for “unsatis factory performance.” Appellant’s Opening Br. at 4 (citing Appellant’s App. at 6-7). These statements do not address Mr. Fo x-Rivera’s good name, reputation, honor, or integrity. At mo st, the State empl oyees accused Mr. Fox-Rivera of negligence, failure to follow protocols, unsatisfactory work, or dereliction in performing his duties . These kinds of accusations would not implicate a protect ed liberty interest. See Se. Kan. Cmty. Action Program, Inc. v. Sec’y of Agric. , 967 F.2d 1452, 1458 (10th Cir. 1992)5 (“[C]harges involving negligence and ne glect of duties . . . are insufficient to establish a liberty interest deprivation.”); Hicks v. City of Watonga , 942 F.2d 737, 746 (10th Cir. 1991) (stating that charge s “of poor work habits or failure to follow inst ructions . . . do not viol ate a liberty interest”); Sullivan v. Stark , 808 F.2d 737, 739 (10th Ci r. 1987) (“[C]omplaints against [plaintiff] . . . wh ich asserted that he was negligent or derelict in performing [his] duties . . . do not implicate concer ns of a constitutional stature.”); Sipes v. United States , 744 F.2d 1418, 1422 (10th Cir. 1984) (stating that the re marks referring to the plaint iff’s lack of reliability did “not call into question [h is] good name, reputation, honor, and integrity”). Thus, the district court correctly conc luded that Mr. Fox-Rivera had failed to allege facts reflecting a depr ivation of a liberty interest. Mr. Fox-Rivera questions one senten ce in the district court’s opinion: “[I]n order to infringe on an employee’s liberty interest, stigmatizing statements must include ‘unfounded charges of di shonesty or immorality that might seriously damage the employee ’s standing or associations in the community.’” Appellant’s App. at 119 (quoting Melton v. City of Okla. City , 928 F.2d 920, 927 (10th Cir. 1991) (en banc)). According to Mr. Fox-Rivera, this statement was erroneous because a statement may be stigma tizing even if it do es not reflect unfounded charges of dishonesty or immorality. But we need not decide whether the district court’s statement went too far.6 As noted above, we en gage in de novo review. See p. 3, above. Engaging in this review, we can affirm on any ground support ed by the record. Phelan v. Laramie Cnty. Cmty. Coll. Bd. of Trs. , 235 F.3d 1243, 1246 (10th Cir. 2000).
In Melton v. City of Oklahoma City , we stated that a pleading was sufficient when the plai ntiff alleged termination of employment based on unfounded charges of di shonesty or immoralit y. 928 F.2d 920, 926-27 (10th Cir. 1991) (e n banc). Citing Melton , we have stated that for a constitutional claim based on an empl oyee’s reputation, “the charges must implicate ‘dishonesty or immorality.’” Hicks v. City of Watonga , 942 F.2d 737, 746 (10th Cir. 1991); see also Palmer v. City of Monticello , 31 F.3d 1499, 1503 (10th Cir. 1994) (“To support a claim for deprivation of a liberty interest, the plain tiff must show th at a public employ er took ‘action to terminate an employee based upon a public statem ent of unfounded charges of dishonesty or immorality . . . .’”). Mr. Fox-Rivera argues that we softened this requirement in McDonald v. Wise , where we held that a complaint sufficed when an employee was fired for “serious mi sconduct” involving a complaint of sexual harassment. 769 F.3d 1202, 1208, 1212 (10th Cir. 2014). In doing so, we did not say whet her we viewed the comp laint as one involving dishonesty or immorality.7 As a result, Mr. Fox-Ri vera argues that he could adequately plead a liberty interest even if the defendants had no t impugned his honesty or immorality. For the sake of argument, we can assume that Mr. Fox-Rivera is correct. But this is not the problem with Mr. Fox-Rivera’s complaint: The problem is that we have repeatedly held th at statements involving unsatisfactory performance are not suffi ciently stigmatizin g for a protected liberty interest. See pp. 4-5, above (ci ting cases). Thus, even if we were to embrace Mr. Fox-Rivera’s reading of McDonald , the complaint would not have sufficed. He still wo uld have lacked a protected li berty interest. IV. Conclusion We affirm the dismissal.

Entered for the Court

Robert E. Bacharach Circuit Judge