UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SHAWN ROGERS, Plaintiff - Appellant,

v. JENNY ALEZOPULOS, in her official capacity as Presiden t of the Oklahoma Board of Health; R MURALI KRISHNA, in his official capacity as Vice President of the Oklahoma Board of Health; CHRIS HART-WOLFE, in her official capacity as Secretary-Treasurer of the Oklahoma Board of Health; ALFRED BALDWIN, JR., in his official capacity as a member of the Oklahoma Board of Health; MARTHA A. BURGER, in her official capacity as a member of the Oklahoma Board of Health; TERRY R. GERARD, III, in his official capac ity as a member of the Oklahoma Board of Health; RICHARD G. DAVIS, in his official capacity as a member of the Oklahoma Board of Health; BARRY L. SMITH, in his official capacity as a member of the Oklahoma Board of Health; RONALD WOODSON, in his official capacity as a member of the Oklahoma Board of Health; TERRY CLINE, in his official capacity as Commissioner of Health of the State of Oklahoma; DAN DUROCHER, in his official capacity as Director of the Office of Accounta bility Systems, No. 12-6264 (D.C. No. 5:11- CV-01140-C) (W.D. Okla.) FILED United States Court of Appeals Tenth Circuit 

### December 6, 2013

Elisabeth A. Shumaker Clerk of Court-2- Defendants - Appellees.

ORDER AND JUDGMENT *

Before KELLY , LUCERO , and MATHESON , Circuit Judges.

Shawn Rogers appeals the district court’ s dismissal of his complaint alleging that the defendants denied him due process by failing to hold a name-clearing hearing in

connection with his termination from state em ployment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I We draw the following allegations from Rogers’ amended complaint. Rogers began working for the Oklahoma State Depart ment of Health (the “Department”) in 1996, and served as the Director of the Department’s Emergenc y Medical Services (“EMS”) Division beginni ng in 2001. In that position, he was responsible for enforcing

“ambulance rules” state-wide. In 2007, the Department suspended the EMS license of ambulance service Central Med following an investigation by Rogers and other Department employees. During an administrative appeal of this suspension, Central Med and th e Department entered into a

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. This court generally disfavors the citation of orders and judgments; nevertheless , an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.-3- memorandum of understanding. Pursuant to th at agreement, Central Med would be sold to a new company, and its principals, Mr. and Mrs. Weaver, would be prohibited from serving in a management capacity at th e new company. After Central Med was purchased by Pulse EMS of Oklahoma (“Pulse” ), Rogers and others at the Department came to suspect that the Weavers were operating Pulse in contravention of the memorandum of understanding. Following c onsultations with his supervisors and the Department’s Office of General Counsel, Ro gers initiated an inve stigation into this possible breach. After the investigation began, the Weaver s filed complaints with the State Ethics Commission and the Department’s Office of Accountability Systems (“OAS”). The Weavers alleged that Rogers, investigator Elizabeth Sullivan, and other department employees were harassing Pulse and continui ng their investigation despite a conflict of interest. The State Ethics Commission dismissed the complaint. OAS Director Dan

Durocher held several interviews and at least one hearing as part of his investigation of the Weavers’ accusations. The hearing was attended by Duroch er and additional Department employees, as well as the Weavers’ State Repres entative, the Chief of Staff to the Oklahoma House Speaker, and others. However, neither Rogers nor any of the other employees mentioned in the Weavers’ complaint were aware of the meeting. Sometime after this hearing, the Depart ment agreed to end the administrative proceeding against Pulse, pay Pulse or the Weavers “an amount belie ved to be $25,000,” and remove all statements of deficiency regarding Pulse and Central Med from the-4- Department’s records. In addition, the De partment “agreed to co rrespond with numerous Oklahoma municipalities within Pulse’s serv ice area advising them that [Rogers’] statements or regulatory allega tions against both Central Med and Pulse were untruthful.” Subsequently, Rogers, Sullivan , and a Department attorney assigned to the Pulse investigation were terminated. Following th ese terminations, the Department “directed contact with certain Oklahoma municipalities a dvising them that [Rogers’] statements or regulatory allegations agai nst both Central Med and Pulse were untruthful.” After being terminated, Rogers was a pproached by a private EMS company for consideration as its operating officer. Howe ver, he was later dropped from consideration due to “the events at the state.” Rogers then sought a position with another employer, which telephoned the Departme nt’s personnel division. Th e prospective employer was informed that Rogers was listed as not eligib le for rehire with the Department. Rogers did not obtain a position with that employer. Rogers then filed suit in federal district court against several Department officials, alleging that his due process rights were viol ated by the Department’s failure to hold a name-clearing hearing in connection with his termination. He seeks damages, reinstatement, and a declaration regardi ng the insufficiency of the Department’s procedures. Rogers also assert ed a state-law claim for wrongful termination that is not at issue in this appeal. After permitting him to amend his complaint, the district court concluded that Rogers failed to state a clai m and dismissed the action. Rogers timely appealed.-5- II We review a district court’s grant of a Fed. R. Civ. P. 12(b)(6) motion to dismiss de novo. Hollonbeck v. U.S. Olympic Co mm., 513 F.3d 1191, 1194 (10th Cir. 2008).

“To survive a motion to dism iss, a complaint must cont ain sufficient factual matter, accepted as true, to ‘state a claim to relief th at is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial pl ausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable infe rence that the defendant is liable for the misconduct alleged.” Id. This court has recognized that a govern ment employee possesses a liberty interest in protecting his good name and reputation in certain circumstances. See Darr v. Town of Telluride, 495 F.3d 1243, 1255 (10th Cir. 2007). If a public employer terminates “an employee based upon a public statement of unfounded charges of dishonesty or immorality that might seriously damage the em ployee’s standing or associations in the community and foreclose the employee’s freedom to take advantage of future employment opportunities, a claim for relief is created.” Melton v. City of Okla. City, 928 F.2d 920, 927 (10th Cir. 1991). To determine whether a plai ntiff’s liberty interest in his good name is infringed, we apply a four-part test: First, to be actionable, the stat ements must impugn the good name, reputation, honor, or integrity of the employee. Second, the statements must be false. Third, the statements must occur in the course of terminating-6- the employee or must foreclose othe r employment opportunities. And fourth, the statements must be pu blished. These elements are not disjunctive, all must be satisfied to demonstrate deprivation of the liberty interest. Workman v. Jordan, 32 F.3d 475, 481 (10th Cir. 1994) (c itations omitted). We later clarified in Renaud v. Wyomi ng Department of Family Serv ices, 203 F.3d 723 (10th Cir. 2000), that the third factor requires “that the defamation occur in the course of the termination of employment.” Id. at 728 n.1. If these cond itions are met, the government must afford the plaintiff “an adequate name-clearing hearing.” Workman, 32 F.3d at 480. We agree with the district court that mo st of the allegedly defamatory statements upon which Rogers relies are non-actiona ble because they were not made by his employer. See Sandoval v. City of Boulder, 388 F.3d 1312, 1329 (10th Cir. 2004) (rejecting due process claim based on deni al of name-clearing hearing because the “alleged derogatory statements were not made by the City [Sandoval’s employer]”). On appeal, Rogers focuses on statements made by the Weavers, co mplaining that the Department “allowed” these i ndividuals to impugn his good name during the course of the OAS investigation. A lthough the Weavers’ comments may give rise to a claim against them under state law, Sandoval makes cl ear that such statem ents do not render the Department liable. We have recognized an ex ception to the general rule that stigmatizing statements must be made by the employer itself. A government employer may be required to hold a name-clearing hearing if it adopts or ratifie s statements made by a third party. See-7- Palmer v. City of Monticello, 31 F.3d 14 99, 1503 n.2 (10th Cir. 1994). In Palmer, a highway patrol officer claimed that Palmer had falsified a speeding ticket. Id. at 1501. The police chief eventua lly fired Palmer, stating in the le tter of termination that the ticket was sufficient to justify his termination. Id. At a subsequent city council meeting, the chief repeated the allegation that Palmer had falsified the ticket, and the council voted the next day to uphold the termin ation. Id. at 1501-02. We held that the accusation of falsifying a ticket was stigmatizing and that the “city council adopted the accusation against Palmer.” Id . at 1503 n.2. Unlike Palmer, however, Rogers does not provide any factual allegations suggesting that the Department publicly repeat ed the Weavers’ accusations or that the Department publicly identified those accusa tions as the reason for his termination. Rogers points to Winegar v. Des Moines Independent Community School District, 20 F.3d 895 (8th Cir. 1994), in wh ich that court held that a school’s decision to interview students about alleged teacher misconduct constituted publication of defamatory

statements. Id. at 899 n.3. Our holding that a cl aim fails if the “der ogatory statements were not made by the [employer],” Sandov al, 388 F.3d at 1329, even when harmonized with the adoption theory espoused in Palmer, see 31 F.3d at 1503 n.2, constrains us from importing our sibling circuit’s publicati on-by-interview jurisprudence. The only defamatory stat ements the complaint specifi cally attributes to the Department are a set of letters alleged to have been sent to various Oklahoma municipalities stating that Rogers’ “stateme nts or regulatory alle gations against both-8- Central Med and Pulse were untruthful.” Th is allegation lacks sp ecificity as to the content of the letters, but even setting aside this vagueness, Rogers fails to allege that the

letters were sent “in the course of the term ination of employment.” Renaud, 203 F.3d at 728 n.1. The amended complaint merely st ates that one of the defendants “directed contact with” the municipalities so metime “[s]ubsequent to [Roger s’] termination.” Because Rogers’ amended complaint does no t allege specific facts showing that the Department made false, s tigmatizing statements in the co urse of his termination, or that the Department adopted such statements made by third parties, we conclude that the

district court did not err in dismissing his due process claim. 1

III

AFFIRMED

. Entered for the Court

Carlos F. Lucero Circuit Judge

1 Rogers also asserted a separate claim seeking a declaratory judgment regarding the inadequacy of OAS procedures, but concedes that this claim fails if we conclude he failed to state a liberty interest deprivation.