UNITED STATES COURT 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. Mitchell 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 decided 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 Court

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After mistakes were made, laboratory supervisors allegedly blamed Mr. 

Fox-Rivera and fired 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 Cir. 2014). In this case, 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 reputation and affirm the dismissal. 

I. The Mistakes, the Firing, and the Suit 

Mr. Fox-Rivera’s laboratory was responsible for 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 quoted authorities who had pinned the 

blame on Mr. Fox-Rivera. These press reports led Mr. Fox-Rivera to sue 

under 42 U.S.C. § 1983, claiming a deprivation of due process. The district 

court dismissed the suit, and Mr. Fox-Rivera appealed. On appeal, Mr. 

Fox-Rivera argues that the allegations were sufficient to state a claim for a 

liberty interest in his reputation. 

II. Claim Against the Laboratory 

The laboratory itself was one of the defendants. The district court 

held that the laboratory was an arm of the state, entitled to dismissal based 

on Eleventh Amendment immunity. Mr. Fox-Rivera has not challenged this 

part of the ruling. 

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III. Claim Against the Two 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 interest or a liberty interest. Hill v. Ibarra, 954 

F.2d 1516, 1524 (10th Cir. 1992). The district 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 property interest, arguing 

instead that the defendants deprived him 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 Cir. 2014). To determine the plausibility of the 

claim, we assume the truth of all well-pleaded allegations in the complaint. 

Albers v. Bd. of Cnty. Comm’rs of Jefferson Cnty., Colo., 771 F.3d 697, 

700 (10th Cir. 2014). 

Applying this standard, we may assume that Mr. Fox-Rivera had a 

protected “liberty interest in his good name and reputation as they related 

to his continued employment.” McDonald, 769 F.3d at 1212. With this 

assumption, however, Mr. Fox-Rivera would still need to plead facts 

indicating infringement of this liberty interest. To satisfy this pleading 

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burden, he had to allege a statement 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 defendants’ alleged statements: 

1. “[A]n investigation had been conducted that found that Mr. 

Fox-Rivera was [sic] wasn’t putting enough blood into the 

device used to determine blood-alcohol content.” 

2. “Mr. Fox-Rivera had failed to follow test protocols, opening 

the door for attorneys to challenge drunk-driving cases.” 

3. “Mr. Fox-Rivera was the cause of and responsible for the 

flawed . . . blood-alcohol testing of drunk driver blood 

specimens.” 

4. The department “had reanalyzed 1,300 of the 1,700 samples 

that it was retesting as a result of errors by Mr. Fox-River 

[sic], and identified 11 samples with ‘significant’ errors, all in 

the favor of defendants accused of drunk-driving.” 

5. Ms. Gurbach stated in an email that Mr. Fox-Rivera had been 

terminated for “unsatisfactory performance.” 

Appellant’s Opening Br. at 4 (citing Appellant’s App. at 6-7). 

 These statements do not address Mr. Fox-Rivera’s good name, 

reputation, honor, or integrity. At most, the State employees 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 protected liberty interest. See Se. Kan. Cmty. Action 

Program, Inc. v. Sec’y of Agric., 967 F.2d 1452, 1458 (10th Cir. 1992) 

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(“[C]harges involving negligence and neglect 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 charges “of poor work habits 

or failure to follow instructions . . . do not violate a liberty interest”); 

Sullivan v. Stark, 808 F.2d 737, 739 (10th Cir. 1987) (“[C]omplaints 

against [plaintiff] . . . which asserted that he was negligent or derelict in 

performing [his] duties . . . do not implicate concerns of a constitutional 

stature.”); Sipes v. United States, 744 F.2d 1418, 1422 (10th Cir. 1984) 

(stating that the remarks referring to the plaintiff’s lack of reliability did 

“not call into question [his] good name, reputation, honor, and integrity”). 

Thus, the district court correctly concluded that Mr. Fox-Rivera had failed 

to allege facts reflecting a deprivation of a liberty interest. 

 Mr. Fox-Rivera questions one sentence in the district court’s opinion: 

“[I]n order to infringe on an employee’s liberty interest, stigmatizing 

statements must include ‘unfounded charges of dishonesty 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 stigmatizing even if it does not reflect unfounded 

charges of dishonesty or immorality. But we need not decide whether the 

district court’s statement went too far. 

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 As noted above, we engage in de novo review. See p. 3, above. 

Engaging in this review, we can affirm on any ground supported 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 plaintiff alleged termination of employment based on 

unfounded charges of dishonesty or immorality. 928 F.2d 920, 926-27 

(10th Cir. 1991) (en banc). Citing Melton, we have stated that for a 

constitutional claim based on an employee’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 plaintiff must show that a public employer took ‘action 

to terminate an employee based upon a public statement 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 misconduct” involving a complaint of 

sexual harassment. 769 F.3d 1202, 1208, 1212 (10th Cir. 2014). In doing 

so, we did not say whether we viewed the complaint as one involving 

dishonesty or immorality. 

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 As a result, Mr. Fox-Rivera argues that he could adequately plead a 

liberty interest even if the defendants had not 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 that statements involving 

unsatisfactory performance are not sufficiently stigmatizing for a protected 

liberty interest. See pp. 4-5, above (citing cases). Thus, even if we were to 

embrace Mr. Fox-Rivera’s reading of McDonald, the complaint would not 

have sufficed. He still would have lacked a protected liberty interest. 

IV. Conclusion 

We affirm the dismissal. 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge 

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