                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 December 6, 2013
                                  TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court


SHAWN ROGERS,

       Plaintiff - Appellant,

v.                                                    No. 12-6264
                                               (D.C. No. 5:11-CV-01140-C)
JENNY ALEZOPULOS, in her official                     (W.D. Okla.)
capacity as President 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 capacity 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 Accountability Systems,
        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 employment. 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 Department of Health (the “Department”) in

1996, and served as the Director of the Department’s Emergency Medical Services

(“EMS”) Division beginning 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 the 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 estoppel. 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.


                                           -2-
memorandum of understanding. Pursuant to that 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 the 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 consultations with his supervisors and the

Department’s Office of General Counsel, Rogers initiated an investigation into this

possible breach.

       After the investigation began, the Weavers 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 continuing 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 Durocher and additional

Department employees, as well as the Weavers’ State Representative, 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 Department agreed to end the administrative

proceeding against Pulse, pay Pulse or the Weavers “an amount believed to be $25,000,”

and remove all statements of deficiency regarding Pulse and Central Med from the
                                            -3-
Department’s records. In addition, the Department “agreed to correspond with numerous

Oklahoma municipalities within Pulse’s service area advising them that [Rogers’]

statements or regulatory allegations against both Central Med and Pulse were untruthful.”

Subsequently, Rogers, Sullivan, and a Department attorney assigned to the Pulse

investigation were terminated. Following these terminations, the Department “directed

contact with certain Oklahoma municipalities advising them that [Rogers’] statements or

regulatory allegations against both Central Med and Pulse were untruthful.”

       After being terminated, Rogers was approached by a private EMS company for

consideration as its operating officer. However, he was later dropped from consideration

due to “the events at the state.” Rogers then sought a position with another employer,

which telephoned the Department’s personnel division. The prospective employer was

informed that Rogers was listed as not eligible 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 violated by the Department’s failure to hold a

name-clearing hearing in connection with his termination. He seeks damages,

reinstatement, and a declaration regarding the insufficiency of the Department’s

procedures. Rogers also asserted 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 claim and dismissed the action. Rogers timely

appealed.
                                             -4-
                                               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 Comm., 513 F.3d 1191, 1194 (10th Cir. 2008).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that 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 plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id.

       This court has recognized that a government 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 employee’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 plaintiff’s liberty interest in his good name is infringed,

we apply a four-part test:

       First, to be actionable, the statements 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
                                              -5-
       the employee or must foreclose other employment opportunities. And
       fourth, the statements must be published. 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) (citations omitted). We later

clarified in Renaud v. Wyoming Department of Family Services, 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 conditions 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 most of the allegedly defamatory statements

upon which Rogers relies are non-actionable 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 denial 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, complaining that the

Department “allowed” these individuals to impugn his good name during the course of

the OAS investigation. Although the Weavers’ comments may give rise to a claim

against them under state law, Sandoval makes clear that such statements do not render the

Department liable.

       We have recognized an exception 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 ratifies statements made by a third party. See

                                             -6-
Palmer v. City of Monticello, 31 F.3d 1499, 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 eventually fired Palmer, stating in the letter 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 termination. 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 repeated the Weavers’ accusations or that the

Department publicly identified those accusations 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 which 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 claim fails if the “derogatory statements

were not made by the [employer],” Sandoval, 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 publication-by-interview jurisprudence.

       The only defamatory statements the complaint specifically attributes to the

Department are a set of letters alleged to have been sent to various Oklahoma

municipalities stating that Rogers’ “statements or regulatory allegations against both
                                             -7-
Central Med and Pulse were untruthful.” This allegation lacks specificity 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 termination of employment.” Renaud, 203 F.3d at

728 n.1. The amended complaint merely states that one of the defendants “directed

contact with” the municipalities sometime “[s]ubsequent to [Rogers’] termination.”

       Because Rogers’ amended complaint does not allege specific facts showing that

the Department made false, stigmatizing statements in the course 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.

                                              -8-
