UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

KATHERINE TILLEY, Plaintiff-Appellant

v. DIRK MAIER, FRED CHOLICK, DUANE NELLIS, and KIRK H. SCHULZ, in their individual capacities, Defendants-Appellees. No. 11-3384 (D.C. No. 2:10-CV-02206-CM-GLR) (D. Kan.)

ORDER AND JUDGMENT *

Before GORSUCH , Circuit Judge, BRORBY , Senior Circuit Judge, and HOLMES , Circuit Judge.

Katherine Tilley appeals from the distri ct court’s dismissal of her 42 U.S.C. § 1983 action. We have jurisdiction pursu ant to 28 U.S.C. § 1291, and we AFFIRM.

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 29, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - I. Ms. Tilley made the follo wing allegations in her s econd amended complaint. She began working as an assi stant professor in the Department of Grain Science & Industry at Kansas State University (KSU) in 1996, and she was awarded tenure as an associate professor in 2002. In 2004, she no tified the head of her department that she had developed a pulmonary condition result ing from her exposure to flour dust while working at KSU. Over the next four y ears, she worked with representatives and agents of defendants developing severa l plans to accommodate her condition. During the 2008-2009 academic y ear, Ms. Tilley worked from home, conducting academic research a nd co-authoring an academic ar ticle. On December 5, 2008, defendant Dirk Maier se nt Ms. Tilley a letter stati ng that her sick and vacation leave would be applied to her absences. On January 21, 2009, Ms. Tilley’s physician sent defendant Maier a letter regardi ng Ms. Tilley’s medical condition. On February 29, defendant Maier sent a lett er to Ms. Tilley’s physician requesting clarification concerning Ms. Tilley’s medical condition. On March 30, defendant Maier sent Ms. Tilley a le tter advising her that she ha d exhausted her sick and vacation leave and was now on unpaid status. On April 1, Ms. Tilley’s attorney sent a letter to the KS U attorney’s office demanding that the university replenish Ms. Tilley’s sick and vacation leave. On April 17, Ms. Tilley received a letter from defendants Maie r and Fred Cholick, which stated: “[i]t appears you have aband oned your position and have discontinued- 3 - communications with your employer.” Aplt. App. at 69 (inter nal quotation marks omitted). On April 20, defendant Maier se nt Ms. Tilley a letter informing her that her resignation had been processed. On September 23, Ms. Tilley sought to appeal her termination pursuant to KSU’s policies regarding termination of tenur ed faculty members. On October 1, she was informed by counsel fo r KSU that she was not eligible for any grievance procedure for terminated profes sors because she had resigned. Based on these factual allegations, Ms . Tilley brought a claim for breach of contract as well as constituti onal claims for violations of substantive and procedural due process. Defendants filed a motion to dismiss. The district court granted the motion. The court noted that Ms. Tilley ha d conceded that she could not maintain a breach-of-contract claim against defendants. On the remaini ng claims, the court concluded that defenda nts were entitled to qualified immunity. Ms. Tilley appeals.
II. Ms. Tilley’s sole contention on appeal is that the district court erred in granting defendants’ motion to dismiss one of her proce dural due process claims. 1
We review de novo the district court’s d ecision to grant a motion to dismiss based on qualified immunity. See Brown v. Montoya , 662 F.3d 1152, 1162 (10th Cir. 2011).

1 Ms. Tilley brought two distinct due process claims—one for deprivation of a property interest and one for deprivation of a liberty inte rest. She does not challenge the district court’s dismissal of her libert y-interest claim. Further, she does not challenge the district court’s dismissal of her substantive due process claim.- 4 - In reviewing a motion to dismiss, “all well- pleaded factual allegations in the . . . complaint are accepted as true and viewed in the light most favorable to the nonmoving party.” Id . (internal quotation marks omitt ed). A court may “consider documents referred to in the complaint if the documents ar e central to th e plaintiff’s claim and the parties do not disput e the documents’ authenticity.” Smith v. United
States , 561 F.3d 1090, 1098 (10th Cir. 2009). “[F]actual allegations that contradict . . . a properly considered document are not well-pleaded facts that the court must accept as true.” GFF Corp. v. Associated Wholesale Grocers , 130 F.3d 1381, 1385 (10th Cir. 1997). Defendants asserted in their motion to dismiss that they were entitled to qualified immunity on Ms. Tilley’s procedur al due process property-interest claim. 2 To defeat the assertion of qualified imm unity, a plaintiff must demonstrate that (1) the facts alleged “make out a violation of a constitutional right”; and (2) “the right at issue was ‘clearly es tablished’ at the time of th e . . . alleged misconduct.” Pearson v. Callahan , 555 U.S. 223, 232 (2009). A procedural due process claim require s (1) “a protected property interest,” and (2) deprivation of that interest w ithout “an appropriate level of process.” Camuglia v. City of Albuquerque , 448 F.3d 1214, 1219 (10th Cir. 2006). The district

2 Our review is somewhat hampered by Ms . Tilley’s failure to comply with this court’s rules and attach the relevant doc uments from the distri ct court record. See 10th Cir. R. 10.3(D)(2), 30.1(A)(1). Although her appendix includes a copy of the defendants’ two-page moti on to dismiss, it does not include a copy of the memorandum in support of the motion or her response in oppositi on to the motion.- 5 - court assumed that Ms. Till ey had a cognizable proper ty interest, but the court concluded that “she ha[d] not alleged facts indicating that she was deprived of that property interest without an appropriate level of process. ” Aplt. App. at 86. We
agree. Ms. Tilley alleged th at defendants Maier and Cholick classified her employment as “abandoned” without any noti ce to her; defendant s Nellis and Schulz upheld that decision, thereby depriving her of a property interest without due process; and all of the defendants violated her due proces s rights by denying her an opportunity for a hearing. Due process requires notice and an opportunity to be heard. See Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 546 (1985). We consider defendants’ conduct based on the allegations in th e complaint and the letters referenced in Ms. Tilley’s complaint. 3 We may consider these letters b ecause they were referenced in the complaint, are central to Ms. Tilley’s claims, and their authenticity has not been disputed. See Smith , 561 F.3d at 1098. These properly considered letters contradict Ms. Tilley’s assertion that she did not receive “any” notice that defendants were going to consider her pos ition “abandoned” and that she did not receive an

3 These letters were attached to de fendants’ memorandum in support of the motion to dismiss. As noted, Ms. Tilley’s appendix is deficien t and did not contain this memorandum or the attached exhibits, but we may consider any document that is part of the district court r ecord even when it has not b een provided in the appendix. See Burnett v. Sw. Bell Tel., L.P. , 555 F.3d 906, 907-08 (10t h Cir. 2009).- 6 - opportunity to be heard. We therefore conc lude that those allega tions are not entitled to an assumption of truth. See GFF Corp ., 130 F.3d at 1385. On December 5, 2008, defendant Maier notified Ms. Tilley that the department considered her to be absent from her wo rk site without approval and was going to apply her sick and annual leave towards her absences. On February 23, 2009, defendant Maier requested clarificat ion from Ms. Tilley’s physician about Ms. Tilley’s health condition and whethe r she could perform her essential job functions. On March 30, defe ndant Maier notified Ms. Till ey that she had exhausted all of her leave. He also gave her the opportunity to respond by requesting that she “[p]lease contact [him] at her earliest convenience to schedule a meeting . . . regarding [her] intentions con cerning [her] return to work.” R., Doc. 54-1 at Ex. C. On April 17, defendants Maier and Cholic k sent Ms. Tilley a letter noting that her physician had indicated that Ms. Tilley had withdrawn permission to communicate with the university regarding her medical condition. The letter also indicated that Ms. Tilley had “not respond ed to . . . recent phon e and email messages or [the] March 30 letter.” Id . at Ex. D. The letter conclude s: “At this point in time, it appears you have aband oned your position a nd have discontinue d communications with the University as your employer. Ther efore, we are treatin g your actions as a resignation and will prepare th e paperwork accordingly.” Id . On April 20, defendants sent Ms. Tilley a letter notif ying her that her resignation had been processed.- 7 - Ms. Tilley does not allege in her complaint that sh e ever directly called, emailed, or contacted defe ndants during this time peri od. The sole communication from Ms. Tilley during this time did not come from her directly and was not sent to any of the named defendants—it is an Apri l 1 letter from her attorney to Richard Seaton in the KSU attorney’s office dema nding that her sick and vacation leave balances be replenished and threateni ng legal action if KSU did not comply. Ms. Tilley does not allege in her complaint that she took any steps to communicate with the university after she received th e April 17 letter and before her resignation was processed on April 20. Under these circumstances, Ms. Tilley ha s not alleged suffici ent facts to show that she did not receive adequate notice and an opportunity to be heard. The December 2008, Januar y 2009, and March 2009 letters put her on notice that the university did not consider her to be actively working (even though she considered herself to be working), that she had exhausted all of her l eave, and that they needed further clarification from her physician regarding her me dical condition and whether she could perform the essentia l functions of her job. The March letter gave her an opportunity to be heard on these matters, specifically requesting that she contact defendant Maier to set up a meeting to discu ss her intentions regarding her return to work. When she did not respond to any of these communications directly, she was given explicit notice in the April 17 le tter that her position was being deemed- 8 - abandoned. She did not take the opportun ity to rebut this as sertion before her resignation was processed on April 20. Ms. Tilley argues in her opening brief “[a]t which point in time, between these two date s, could [she] have had ample time to reply?” Aplt. Br. at 12. But Ms. Tilley di d not allege in her co mplaint that she did not have ample time to res pond to the April 17 letter and therefore it cannot form the basis for any alleged due pro cess violation. And, in a ny event, due process does not require a “delay between the notice and th e opportunity to respond accorded to the public employee.” Powell v. Mikulecky , 891 F.2d 1454, 1459 (10th Cir. 1989) (internal quotation marks omitted). 4
Even if we were to consider defe ndants’ conduct to be constitutionally deficient, they did not violate clearly esta blished law. “When a clearly established right depends on the applicati on of a general principle of law to a particular set of facts, its contours must be sufficiently clear that a reasona ble official would understand that what he is doing violates that right.” Cordova v. Aragon , 569 F.3d 1183, 1192 (10th Cir. 2009) (internal quota tion marks omitted). In her opening brief, Ms. Tilley argues that defendants violated clearly established law because they

4 In Powell , a supervisor confronted an em ployee face-to-face about alleged misconduct. The employee admitted to the conduct and the supervisor informed him that he was going to be terminated. The employee alleged that he did not receive notice and an opportunity to be heard. We concluded that the employee received oral notice of the charge when he was confront ed by his supervisor in the face-to-face meeting and that the employee had the opport unity at that time to rebut the charge against him. We noted that it was the employee who ended the conversation once he had been informed he was going to be term inated. We therefore concluded that the employee had chosen not to exercise his opportunity to be heard.- 9 - “should have known that it was unlawful and contrary to [the] KSU University Handbook, Appendix C, Academic Freedom and Tenure, not to provide notice and opportunity to respond prior to terminati ng the employment of a tenured professor and depriving her of her prope rty interest without due pro cess.” Aplt. Br. at 14. First, any alleged viola tions of the university’s po licies cannot support a claim that defendants violated cl early establis hed law. See de Llano v. Berglund , 282 F.3d 1031, 1035 (8th Cir. 2002) (holding that “f ederal law, not state law or [university] policy, determines what constitutes adequate procedural due process.”). Second, we cannot agree that a reasonable official give n the circumstances in this case would think that his conduct violated Ms. Tilley’s due process right s. As the district court explained in its dismissal or der, “[Ms. Tilley] failed to identify any case law . . . establishing what process is due before a government employer deems an employee to have abandoned her position” and sh e also failed “to identify any case law indicating that the process provided to he r by defendants including the form of the letters . . . was defi cient.” Aplt. App. at 86. Accordingly, we AFFIRM the district court’s decision to grant defendants’ motion to dismiss on the basi s of qualified immunity.

Entered for the Court
Wade Brorby Senior Circuit Judge