Filed: Aug. 13, 2001
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 13 2001 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk W. FRED SANDERS, Plaintiff-Appellant, v. No. 00-4080 (D.C. No. 99-CV-111) STATE OF UTAH, INDUSTRIAL (D. Utah) COMMISSION OF UTAH, Division of Occupational Safety and Health; JAY BAGLEY, in his official capacity as head of Occupational Safety and Health, Defendants-Appellees. ORDER AND JUDGMENT * Before SEYMOUR and McKAY , Circuit Judges, and BRORBY , Senior
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 13 2001 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk W. FRED SANDERS, Plaintiff-Appellant, v. No. 00-4080 (D.C. No. 99-CV-111) STATE OF UTAH, INDUSTRIAL (D. Utah) COMMISSION OF UTAH, Division of Occupational Safety and Health; JAY BAGLEY, in his official capacity as head of Occupational Safety and Health, Defendants-Appellees. ORDER AND JUDGMENT * Before SEYMOUR and McKAY , Circuit Judges, and BRORBY , Senior ..
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 13 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
W. FRED SANDERS,
Plaintiff-Appellant,
v. No. 00-4080
(D.C. No. 99-CV-111)
STATE OF UTAH, INDUSTRIAL (D. Utah)
COMMISSION OF UTAH, Division
of Occupational Safety and Health;
JAY BAGLEY, in his official capacity
as head of Occupational Safety and
Health,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR and McKAY , Circuit Judges, and BRORBY , Senior Circuit
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff W. Fred Sanders is appealing the district court’s entry of summary
judgment in favor of defendants on his federal civil rights and state law claims.
We have reviewed the district court’s grant of summary judgment de novo,
examining the record and the reasonable inferences drawn therefrom in the light
most favorable to plaintiff. See 19 Solid Waste Dep’t Mech. v. City of
Albuquerque , 156 F.3d 1068, 1071 (10th Cir. 1998). We affirm.
I. Background
Plaintiff worked for the State of Utah Industrial Commission, Division of
Occupational Safety and Health (Utah OSHA), as a compliance safety and health
officer (CSHO). Defendant Jay Bagley was the administrator of the Utah OSHA.
Pursuant to the provisions of the federal Occupational Safety and Health Act
(OSHA), 29 U.S.C. § 667, the State of Utah is an approved state enforcement
entity, and the Utah OSHA has responsibility for developing and enforcing all
occupational safety and health standards in the State of Utah.
On or about October 20, 1994, plaintiff resigned from his position as a
CSHO after defendants informed him that he was going to be terminated for cause
for insubordination because of his refusals in 1992, 1993, and 1994 to fully
complete the mandatory annual medical examinations which the Utah OSHA
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required of all its CSHOs and other deficiencies in his job performance. To
document his resignation, plaintiff submitted a letter of resignation and he and the
commissioner of the Utah Industrial Commission also signed a memorandum of
understanding. The memorandum of understanding provided that: (1) the
effective date of plaintiff’s resignation was December 31, 1994; (2) up until
December 31, 1994, plaintiff would be on paid administrative leave and would
receive all of his state employment benefits; (3) the Industrial Commission would
withdraw the notification of discharge from plaintiff’s state personnel file; and
(4) plaintiff agreed that his resignation was voluntarily entered into and he waived
his right to appeal.
Almost four years later, on October 16, 1998, plaintiff filed a complaint
against defendants in state court in Salt Lake County, Utah. It appears from the
record that none of the defendants were served with a copy of plaintiff’s original
complaint. On February 8, 1999, defendant State of Utah was served with a copy
of plaintiff’s first amended complaint. In his first amended complaint, plaintiff
asserted claims against defendants for wrongful discharge in violation of public
policy; wrongful discharge in retaliation for engaging in protected activity; and
wrongful discharge in retaliation for whistle blowing. Pursuant to 42 U.S.C.
§ 1983, plaintiff also asserted a federal claim against defendants for violation of
his property and liberty interests without due process.
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On February 24, 1999, defendant State of Utah removed the state court case
to the United States District Court for the District of Utah, Central Division, and
defendants subsequently moved for judgment on the pleadings under Fed. R. Civ.
P. 12(c). On January 18, 2000, because the parties had presented matters outside
the pleadings, the district court converted defendants’ motion into a motion for
summary judgment and granted the parties an additional ten days to submit
additional materials for the court to consider. On January 24, 2000, instead of
submitting additional evidentiary materials, plaintiff filed a motion for leave to
file a second amended complaint. Defendants opposed plaintiff’s motion, and the
district court denied plaintiff’s motion for leave to file a second amended
complaint on March 28, 2000. On the same date, the district court also granted
defendants summary judgment on all of the claims asserted in plaintiff’s first
amended complaint.
II. Plaintiff’s Second Amended Complaint
In his notice of appeal, plaintiff appealed “from the District Court’s
Order . . . granting Defendant’s Motion for Judgment on the Pleadings.” See
Appellee’s Supp. App., Vol. II, at 313. Defendants argue that the notice of appeal
was defective in that plaintiff failed to separately appeal the district court’s order
denying his motion for leave to file his second amended complaint and that this
court therefore lacks jurisdiction to consider plaintiff’s claim that the district
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court erred in denying his motion for leave. We disagree. “[A] notice of appeal
that names the final judgment is sufficient to support review of all earlier orders
that merge in the final judgment under the general rule that appeal from a final
judgment supports review of all earlier interlocutory orders.” Cole v. Ruidoso
Mun. Sch. , 43 F.3d 1373, 1383 n. 7 (10th Cir. 1994) (quotation omitted).
Nonetheless, for substantially the same reasons set forth by the district
court in its memorandum decision dated March 28, 2000, see Appellant’s App. at
124-25, we hold that the district court did not abuse its discretion in denying
plaintiff leave to file his second amended complaint. Accordingly, we will not
consider the factual allegations or legal claims asserted in plaintiff’s second
amended complaint. 1
III. Plaintiff’s Federal Claims
To support his federal claims under § 1983, plaintiff alleged in his first
amended complaint that defendants “violated [his] rights to not be deprived of a
property or liberty interest without due process of the law by not considering [his]
legitimate rights visa vis [sic] the medical examinations, in punishing him for
1
We note, however, that the claims asserted in plaintiff’s second amended
complaint suffer from the same deficiencies as the claims asserted in plaintiff’s
first amended complaint. Specifically, plaintiff’s retaliation, wrongful discharge,
and procedural due process claims fail due to his voluntary resignation, and his
substantive due process/privacy claims are time barred.
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exercising his statutory and common law rights and in not properly responding to
[his] complaint and appeal.” See Appellant’s App. at 36, ¶ 168. Giving plaintiff
the benefit of the doubt, we will assume that his allegations raise both procedural
and substantive due process claims and that the former is focused on the
circumstances of his resignation from the Utah OSHA, while the latter is focused
on the circumstances of the mandatory medical examinations.
With respect to the procedural due process claim, we agree with the district
court that, even assuming plaintiff had a property interest in his employment, he
relinquished any such interest by voluntarily resigning from his job, and the fact
that defendants had previously threatened to discharge him did not make his
resignation involuntary. See Parker v. Bd. of Regents of the Tulsa Junior Coll. ,
981 F.2d 1159, 1161-62 (10th Cir. 1992). Accordingly, for substantially the same
reasons set forth by the district court, see Appellant’s App. at 137-40, we affirm
the district court’s entry of summary judgment on plaintiff’s procedural due
process claim.
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With respect to the substantive due process claim, 2
plaintiff claims in his
opening brief that the mandatory medical examinations infringed on his
constitutional right to privacy and that defendants further violated his privacy
rights by failing to implement and follow the federal standards and procedures
under OSHA for such examinations. Plaintiff’s claims on appeal arguably go well
beyond the allegations in his first amended complaint and raise significant
pleading and standing issues. However, we need not reach these issues because
we hold that plaintiff’s substantive due process claim is time barred.
The four-year limitations period in Utah Code Ann. § 78-12-25(3) provides
the limitations period for plaintiff’s § 1983 claims. See Sheets v. Salt Lake
County , 45 F.3d 1383, 1387 (10th Cir. 1995). Although the district court did not
address this issue, we agree with defendants that any federal constitutional claim
related to the medical examinations themselves, as opposed to plaintiff’s
subsequent resignation and alleged wrongful discharge, accrued more than four
2
As used herein, the term “substantive due process” refers to the federal
constitutional rights that have been incorporated against the states under the due
process clause of the Fourteenth Amendment. The federal constitutional right at
issue here is the right to privacy or, more correctly, the right guaranteed by the
Fourth Amendment to be free from unreasonable searches and seizures. See, e.g. ,
19 Solid Waste Dep’t Mech., 156 F.3d at 1072 (analyzing Fourth Amendment
privacy claims in § 1983 case involving challenge to state drug testing program);
Yin v. California ,
95 F.3d 864, 869-71 (9th Cir. 1996) (analyzing Fourth
Amendment privacy claims in § 1983 case involving challenge to state medical
examinations).
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years before plaintiff filed his original complaint, or before October 16, 1994. 3
As a result, plaintiff’s substantive due process claim is time barred.
IV. Plaintiff’s State Law Claims
To support his state law retaliation and wrongful discharge claims, plaintiff
claims that he did not voluntarily resign from his position as CSHO and that his
resignation was a constructive discharge. We disagree. As found by the district
court, the undisputed material facts show that plaintiff voluntarily resigned from
his job. See Appellant’s App. at 137-40. Consequently, plaintiff has failed to
state a claim for wrongful discharge under state law. See Daemi v. Church’s
Fried Chicken , Inc. , 931 F.2d 1379, 1391 (10th Cir. 1991) (holding that plaintiff
could not state claim for wrongful discharge under state law where evidence
showed that he voluntarily resigned).
The State of Utah is also immune from liability for tort claims for wrongful
discharge under the Utah Governmental Immunity Act. 4
See Utah Code Ann.
3
The record indicates that plaintiff’s last annual medical examination took
place on August 31, 1994, and that plaintiff provided a blood sample in
connection with the last examination on September 15, 1994. There is no
indication in the record that plaintiff was compelled to submit to any subsequent
medical examinations or procedures. Accordingly, we hold that plaintiff’s
substantive due process/privacy claim accrued, at the latest, on September 15,
1994, and that the claim was therefore time barred as of September 15, 1998. As
noted above, plaintiff did not file his original complaint until October 16, 1998.
4
Defendants also claim that they are immune from suit under the Eleventh
(continued...)
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§ 63-30-3(1); Broadbent v. Bd. of Educ. of the Cache County Sch. Dist. , 910 P.2d
1274, 1277 (Utah Ct. App. 1996). 5
Plaintiff has also failed to state a claim
against defendant Bagley in his individual capacity because he has failed to allege
that Bagley acted or failed to act due to fraud or malice. See Utah Code Ann.
§ 63-30-4(4).
The judgment of the United States District Court for the District of Utah is
AFFIRMED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
4
(...continued)
Amendment. However, the State of Utah waived its immunity under the Eleventh
Amendment by removing this case to federal court. See Sutton v. Utah State Sch.
for the Deaf & Blind , 173 F.3d 1226, 1233-34 (10th Cir. 1999).
5
In Broadbent , the Utah Court of Appeals noted in dicta that the Utah
Governmental Immunity Act would not bar an equitable claim for reinstatement.
Broadbent , 910 P.2d at 1277, n.4. Although plaintiff seeks reinstatement, he is
not entitled to such equitable relief since the undisputed facts show that he
voluntarily resigned from the Utah OSHA.
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