Nicholas J. Roberts v. James M. Winder, individually

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
NICHOLAS J. ROBERTS,
Plaintiff - Appellant,
v.
JAMES M. WINDER, individually;
ROSIE RIVERA, in her official capacities
as the Salt Lake County Sheriff and CEO
of the Unified Police Department of
Greater Salt Lake; THE UNIFIED POLICE
DEPARTMENT OF GREATER SALT
LAKE,
Defendants - Appellees.
No. 20-4082
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:17-CV-00298-DAK)
_________________________________
Robert W. Hughes, Robert W. Hughes Law Office (Jesse C. Trentadue, Suitter Axland,
PLLC, with him on the briefs), Salt Lake City, Utah, appearing for Appellant.
Scott Young, Salt Lake City, Utah, appearing for Appellees.
_________________________________
Before BACHARACH, BRISCOE, and MURPHY, Circuit Judges.
_________________________________
BRISCOE, Circuit Judge.
_________________________________
FILED
United States Court of Appeals
Tenth Circuit
October 26, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 1

-- 1 of 30 --

2
Plaintiff Nicholas Roberts appeals the district court’s grant of summary judgment
in favor of Defendants James Winder, Rosie Rivera (solely in her official capacity as Salt
Lake County Sheriff), and the Unified Police Department of Greater Salt Lake (“UPD”)
(collectively, “Defendants”) on Roberts’ 42 U.S.C. § 1983 and the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§ 621–34, claims. All of his claims arose from
his removal as Range Master-Firearms Instructor (“Range Master”). Roberts also appeals
the district court’s denial of reconsideration of its prior summary judgment orders.
We have jurisdiction over Roberts’ federal and state law claims pursuant to 28
U.S.C. §§ 1331 and 1367, respectively. We AFFIRM the district court’s rulings.
I
A. Factual Background
In 1996, the Deputy Sheriff’s Merit Service Commission (“Merit Commission”),
at the request of then-Sheriff Aaron Kennard, approved the creation “of a specialist
position RANGE MASTER.” Aplt. App., Vol. 6 at 1298. After a nationwide search and
competitive examination, the Merit Commission approved Kennard’s request to appoint
Roberts as “Range Master Level I, P-17.” Id. at 1308. In 2005, while still serving as
Range Master, Roberts tested for and obtained a merit rank advancement from Deputy to
Sergeant.
In 2006, Winder defeated Kennard in an election for Salt Lake County Sheriff.
Roberts supported Kennard in that election.
In 2009, merit rank Lieutenants received a pay raise. Roberts did not qualify for
that automatic pay raise as Range Master. Roberts requested a pay increase from “Range
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 2

-- 2 of 30 --

3
Master Specialist P17/P21” to “Range Master Specialist P21/P25.” Aplt. App., Vol. 3 at
472. The increased pay range was comparable to that of merit rank Lieutenants.
In 2010, the UPD was created out of the Salt Lake County Deputy Sheriff’s office.
The UPD is governed by a Board of Directors, with the County Sheriff serving as the
UPD’s Chief Executive Officer. Accordingly, as Sheriff, Winder served as CEO when
the UPD was created. Roberts was transferred from the Sheriff’s Office to the UPD with
the same merit rank and pay grade.
On March 1, 2017, at Winder’s request, Undersheriff Scott Carver and Chief
Deputy Shane Hudson met with Roberts and informed him that the Range Master
position was being eliminated. Hudson also told Roberts he would be reassigned to
patrol duties and his pay would be reduced. On March 8, Roberts was ordered to clean
out his desk and leave the Range. On March 9, Roberts, through counsel, sent a letter to
Winder objecting to his removal, reassignment, and pay reduction. See Aplt. App., Vol.
3 at 263. On March 23, Winder responded to the letter. See id. at 306. Winder treated
Roberts’ letter as a grievance and rejected the grievance. Winder explained the Range
Master was subject to transfer under Merit Commission Policy 3140, Range Master was a
specialist position, and Roberts’ merit rank was “sergeant.” Id. at 310. Winder
concluded by informing Roberts: “You may have a right to appeal this decision; however,
the Department reserves the right to contest this appeal because it is a final,
non-appealable decision statutorily committed to the discretion of the Sheriff.” Id. The
UPD Board later ratified Winder’s decision to remove Roberts as Range Master and
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 3

-- 3 of 30 --

4
reassign him to patrol duties as a sergeant. See Aplt. App., Vol. 1 at 95 (Answer to 2d
Am. Compl., ¶ 24).
Winder also assigned Todd Griffiths, a merit rank Lieutenant who is four years
younger than Roberts, to oversee the shooting range. Winder then left his position as Salt
Lake County Sheriff to become the Moab City Chief of Police. Roberts did not appeal
his grievance, and instead filed this complaint in the district court. In June 2017, after
Roberts initiated this lawsuit, the UPD conducted two investigations of Roberts’
management of the Range. Both investigations described failures in Roberts’
performance as Range Master. See Aplt. App., Vol. 17 at 3887–94 (containing various
deficiencies in training and management).
B. Procedural Background
Roberts’ complaint asserted six causes of action: (1) a § 1983 claim for
declaratory judgment, restoring him to the position as Range Master; (2) a § 1983 claim
for violations of procedural due process under the Fourteenth Amendment; (3) a § 1983
claim for violations of substantive due process under the Fourteenth Amendment; (4) a
Utah state law claim for violations of due process under the Utah Constitution; (5) a
§ 1983 claim for retaliation against protected speech under the First and Fourteenth
Amendments; and (6) an ADEA claim for age discrimination.
The district court granted partial summary judgment to Defendants on Roberts’
declaratory judgment and due process claims, claims one through four. The district court
held that Roberts did not have a property interest in his position as Range Master, and
thus his reassignment did not violate due process. Alternatively, the district court held
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 4

-- 4 of 30 --

5
that Roberts waived his due process claims by failing to appeal Winder’s decision to the
Merit Commission. The district court did not separately address Roberts’ federal and
state law due process claims.
The district court denied Defendants’ motion for summary judgment on Roberts’
First Amendment retaliation claim, claim five. Roberts’ ADEA claim, claim six, was not
included in that motion for summary judgment.
After further discovery related to his retaliation claim, Roberts moved for
reconsideration of the district court’s grant of partial summary judgment on claims one
through four. In support of his motion, Roberts provided newly discovered evidence that
Defendants had failed to produce earlier. The district court ruled that the new evidence
did not affect its prior ruling and denied reconsideration.
The district court later granted summary judgment to Defendants on Roberts’
remaining First Amendment retaliation and age discrimination claims. The district court
determined that Roberts’ First Amendment retaliation claim could be based on two
instances—Roberts’ refusal to support Winder in the 2006 election and Roberts’ request
for a pay raise in 2009. Applying the Garcetti/Pickering test, the district court ruled that
Roberts failed to produce evidence showing that either instance was a motivating factor
in his reassignment. The district court also held that Roberts’ 2009 pay raise request was
not protected speech because it was not a matter of public concern. Further, the district
court granted the UPD and Rivera summary judgment because Roberts could not identify
a custom or policy which would give rise to municipal liability.
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 5

-- 5 of 30 --

6
The district court also ruled that Roberts’ ADEA claim failed because Roberts did
not produce evidence showing his age was a but-for cause of his reassignment.
Alternatively, the district court ruled that even if Roberts could state a prima facie case,
Roberts could not show that Defendants’ nondiscriminatory reasons for his reassignment
were pretextual. Roberts filed a timely notice of appeal.
II
Summary judgment is warranted when the movant is entitled to “judgment as a
matter of law” because there is no “genuine dispute as to any material fact.” Fed. R. Civ.
P. 56(a). We review the entry of judgment as a matter of law de novo, “applying the
same standard for summary judgment that applied in the district court.” Sandoval v.
Unum Life Ins. Co. of Am., 952 F.3d 1233, 1236 (10th Cir. 2020); see also Lincoln v.
BNSF Ry. Co., 900 F.3d 1166, 1180 (10th Cir. 2018) (stating that when reviewing
summary judgment “we need not defer to factual findings rendered by the district court”)
(citation and internal quotation marks omitted). We view the evidence and draw all
reasonable inferences in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
Government officials sued under 42 U.S.C. § 1983 are entitled to qualified
immunity unless “(1) they violated a federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was clearly established at the time.” District of Columbia
v. Wesby, 138 S. Ct. 577, 589 (2018). Courts have discretion to decide the order in which
they address these two prongs and thus may address the clearly established prong first.
Pearson v. Callahan, 555 U.S. 223, 236 (2009). “‘Clearly established’ means that, at the
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 6

-- 6 of 30 --

7
time of the officer’s conduct, the law was ‘sufficiently clear’ that every ‘reasonable
official would understand that what he is doing’ is unlawful. In other words, existing law
must have placed the constitutionality of the officer’s conduct ‘beyond debate.’” Wesby,
138 S. Ct. at 589 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). “It is not
enough that the rule is suggested by then-existing precedent. The precedent must be clear
enough that every reasonable official would interpret it to establish the particular rule the
plaintiff seeks to apply. Otherwise, the rule is not one that ‘every reasonable official’
would know.” Id. at 590 (citation omitted).
Where activity is arguably protected by the First Amendment, the court has “an
obligation to make an independent examination of the whole record in order to make sure
that the judgment does not constitute a forbidden intrusion on the field of free
expression.” Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212, 1219
(10th Cir. 2007).
III
A. Defendants Are Entitled to Summary Judgment on Roberts’ Due Process
Claims.
1. Roberts Did Not Waive His Substantive Due Process or Pre-Deprivation
Procedural Due Process Claims.
“Despite the strong presumption against waiver, ‘due process rights may be
waived.’” Pitts v. Bd. of Educ. of U.S.D. 305, Salina, Kan., 869 F.2d 555, 557 (10th Cir.
1989) (quoting Johnson v. U.S. Dep’t of Agric., 734 F.2d 774, 784 (11th Cir. 1984))
(alterations omitted). A plaintiff may waive his right “to challenge [his due process
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 7

-- 7 of 30 --

8
rights] in federal court” by a knowing failure to take advantage of the available
procedures. Id. (citing Weinrauch v. Park City, 751 F.2d 357, 360 (10th Cir. 1984)).
In Pitts, a school board passed a resolution to not renew the plaintiff’s contract as
a tenured teacher. The board notified the plaintiff of its intent to not renew his contract
and informed him of his procedural rights, including the right to a pre-termination
hearing before a special committee. But plaintiff filed his complaint before the special
committee met. This court held that by so doing, the plaintiff waived his due process
claims. We explained that by filing suit before the special committee hearing was held,
“Pitts deprived the school board of the opportunity to provide him with due process, and
he gave up his right to test the correctness of the board’s decision.” Id.; see also
Weinrauch, 751 F.2d at 360 (plaintiff cannot challenge post-impoundment hearing
procedures where, instead of challenging the impoundment at a hearing, the plaintiff
“improperly took her car from the lot in the attendant’s absence”).
The district court erred in concluding that this case is analogous to Pitts. Here,
Winder informed Roberts: “You may have a right to appeal this decision; however, the
Department reserves the right to contest this appeal because it is a final, non-appealable
decision statutorily committed to the discretion of the Sheriff.” Aplt. App., Vol. 3 at 310.
Roberts did not appeal the decision, choosing to instead file suit in federal court. The
district court held that, by these actions, Roberts waived his due process claims. Id., Vol.
6 at 1138.
The district court’s waiver analysis erred in two ways. First, it erred in failing to
distinguish Roberts’ substantive due process claim from his procedural due process
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 8

-- 8 of 30 --

9
claim. Second, the district court erred in failing to distinguish Roberts’ rights to
pre-deprivation process from his rights to post-deprivation process.
First, while the district court relied on our decision in Pitts, see Aplt. App., Vol. 6
at 1137, Pitts fails to explain whether it was addressing substantive or procedural due
process. Because we have not recognized a substantive due process right in state-created
employment, Pitts must be read to address a procedural due process claim. Moreover,
after Pitts, the Supreme Court explained that post-deprivation remedies are not relevant
to substantive constitutional claims because “the constitutional violation actionable under
§ 1983 is complete when the wrongful action is taken.” Zinermon v. Burch, 494 U.S.
113, 125 (1990). Thus, Roberts’ failure to participate in post-deprivation proceedings did
not waive his substantive due process claim.
Second, the district court, in considering waiver, did not distinguish between pre-
and post-termination process. The district court focused on Pitts’ holding regarding the
“knowingness” of the plaintiff’s waiver. Aplt. App., Vol. 6 at 1138. But in Pitts, we held
the plaintiff waived his procedural due process claim by failing to participate in a hearing
“after the board’s intent resolution but before termination . . . .” 869 F.2d at 556
(emphasis added). In Weinrauch, we rejected a plaintiff’s challenge to pre-deprivation
due process on the merits and applied the waiver solely to the plaintiff’s challenge to the
“post-impoundment hearing procedure provided by the City . . . .” 751 F.2d at 360
(emphasis added).
Unlike the plaintiff in Pitts, Roberts fully engaged with and participated in all the
pre-termination process he was afforded. And, as in Weinrauch, Roberts’ failure to
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 9

-- 9 of 30 --

10
participate in post-deprivation proceedings only waived his procedural due process claim
challenging those post-deprivation proceedings. As a result, we must address Roberts’
substantive due process and pre-deprivation procedural due process claims on the merits.
2. Roberts Has Not Adequately Briefed His Substantive Due Process Claim.
Under the Fourteenth Amendment, a state may not “depriv[e] a party of ‘property
without due process of law.’” Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207,
1210 (10th Cir. 2000) (quoting U.S. Const. amend. XIV, § 1). “[T]o prevail on either a
procedural or substantive due process claim, a plaintiff must first establish that a
defendant’s actions deprived plaintiff of a protectible property interest.” Id. For the
purposes of substantive due process, the plaintiff’s property interest must be
“fundamental.” Hennigh v. City of Shawnee, 155 F.3d 1249, 1257 (10th Cir. 1998). “We
have not decided whether an employee with a property right in state-created employment
is protected by the substantive due process clause.” Potts v. Davis Cnty., 551 F.3d 1188,
1196 n.1 (10th Cir. 2009).
Even assuming arguendo that the Range Master was a Merit position in which
Roberts held a property interest, Roberts cites no case law indicating that a Merit position
is a “fundamental” property interest. In fact, he fails to even address the standard for a
substantive due process claim. Instead, Roberts merely reiterates that “he has a protected
property interest,” Aplt. Br. at 27, and that Range Master was not an “at-will appointed
position.” Aplt. Reply at 20. Accordingly, on appeal, Roberts has waived his substantive
due process claim. See N.M. Oncology & Hematology Consultants, Ltd. v. Presbyterian
Healthcare Servs., 994 F.3d 1166, 1173 (10th Cir. 2021) (“Such inadequately briefed
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 10

-- 10 of 30 --

11
arguments are waived.”). Under this court’s precedent, Roberts’ claim also fails because
he has not established a property interest in the position of Range Master, nor has he
identified a liberty interest implicated by his transfer. Brenna v. S. Colo. State Coll., 589
F.2d 475, 476 (10th Cir. 1978) (“In order to present a claim of denial of ‘substantive’ due
process by a discharge for arbitrary or capricious reasons, a liberty or property interest
must be present to which the protection of due process can attach.”).
Alternatively, Defendants are entitled to qualified immunity because Roberts’
substantive due process right was not clearly established. Potts, 551 F.3d at 1196 n.1
(“We have not decided whether an employee with a property right in state-created
employment is protected by the substantive due process clause.”).
3. Defendants Are Entitled to Summary Judgment on Roberts’ Procedural
Due Process Claim.
“To determine whether a plaintiff was denied procedural due process, we engage
in a two-step inquiry: (1) Did the individual possess a protected interest to which due
process protection was applicable? (2) Was the individual afforded an appropriate level
of process?” Hennigh, 155 F.3d at 1253 (citing Watson v. Univ. of Utah Med. Ctr., 75
F.3d 569, 577 (10th Cir. 1996)).
a. Roberts Has Not Produced Evidence Showing a Protected Interest.
For the purposes of procedural due process, employees have a protected property
interest in their employment “if state statutes or regulations place substantive restrictions
on a government actor’s ability to make personnel decisions.” Potts, 551 F.3d at 1192
(quoting Hennigh, 155 F.3d at 1253). “Procedural detail in a statute or regulation,
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 11

-- 11 of 30 --

12
standing alone, is not sufficient to establish a protected property interest in an
employment benefit.” Hennigh, 155 F.3d at 1254. “However, if the statute or regulation
places substantive restrictions on the discretion to demote an employee, such as providing
that discipline may only be imposed for cause, then a property interest is created.” Id.
Under Utah law, a “merit system officer holding a permanent appointment may be
demoted, reduced in pay, suspended, or discharged” only for cause. U.C.A. § 17-30-18.
“A merit system officer may be transferred, without examination, from one position to a
similar position in the same class and grade in the same governmental unit.” U.C.A.
§ 17-30-13. The Merit Commission is authorized to “make all necessary rules and
regulations” needed for carrying out the provisions of the Deputy Sheriffs—Merit System
Act. U.C.A. § 17-30-4. Finally, Merit Commission Policy 3100 establishes four
“permanent ranks for Deputy Sheriffs”: Deputy, Sergeant, Lieutenant, and Captain. Aplt.
App., Vol. 5 at 841. So, for Roberts to have a property interest in the Range Master
position, he must establish that he was a merit system officer with a permanent
appointment.
The district court correctly held that Roberts did not have a property interest in his
position as Range Master. While Roberts was a merit system officer with the rank of
Sergeant, he did not hold a permanent appointment as Range Master. Range Master,
unlike Sergeant, is not recognized by Merit Commission Policy 3100 as a permanent
rank. Id. Accordingly, Range Master, unlike Sergeant, was not a permanent
appointment. Thus, Roberts held no property interest in his position as Range Master.
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 12

-- 12 of 30 --

13
Moreover, even if Roberts did hold a property interest, that interest was not
“clearly established” given the ambiguity of the relevant statutes and policies and a lack
of guiding caselaw. See Wesby, 138 S. Ct. at 589 (“The precedent must be clear enough
that every reasonable official would interpret it to establish the particular rule the plaintiff
seeks to apply.” (quoting al-Kidd, 563 U.S. at 741 (2011))).
Roberts argues the district court failed to consider (1) the testimony of various
parties who allege that Range Master was a merit position, (2) a 2009 analyst memo and
other internal policies, and (3) the difference between a “merit” and a “specialist”
position. Ultimately, these arguments are unavailing.
First, Roberts asserts the district court erred by failing “to consider the testimony
of former officials from both the Sheriff’s Office and the Merit Commission, the
testimony of Sheriff Kennard and Winder, and Defendants’ own documents evidencing
that Range Master was a Merit position.” Aplt. Br. at 28. The district court held that
“[b]ecause the Merit Commission has exclusive authority in classifying what positions
have a ‘Merit’ rank, the only thing that is relevant to the classification of Roberts’ former
position [as Range Master] is the documents and evidence from the Merit Commission.”
Aplt. App., Vol. 6 at 1136.
The district court correctly rejected the testimony of former officials and other
witnesses. Whether Roberts has a property interest in his position (and whether that
interest was clearly established) is a legal question—not a fact question. See Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (property right in continued
employment is an issue of state law). Legal questions are resolved by looking at a state’s
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 13

-- 13 of 30 --

14
“statute[s] or regulation[s].” Hennigh, 155 F.3d at 1254.1 Although the officials may
have subjectively believed there were restrictions on reassigning the Range Master
position, and although those officials may have acted as if such restrictions were in place,
the district court correctly found that no statute or regulation actually restricted the
Sheriff’s discretion as a matter of law.
Additionally, the subjective beliefs of government officials are not relevant to
whether Roberts’ property interest was clearly established. See Frasier v. Evans, 992
F.3d 1003, 1015 (10th Cir. 2021) (“[W]hat the officer defendants subjectively understood
or believed the law to be was irrelevant with respect to the clearly-established-law
question.”). The district court did not err in rejecting this testimony.
Second, Roberts’ reliance on a 2009 memo to the Merit Commission fails for
similar reasons. See Aplt. Br. at 29; see also Aplt. App., Vol. 18 at 4323 (Speer Memo).
The memo expressed one human resources analyst’s opinion. Like the deposition
testimony of other witnesses, the opinion expressed in the memo does not determine
whether Roberts had a property right as a matter of law, as Roberts’ property rights are
determined by Utah’s statutes and regulations, not witness testimony. Hennigh, 155 F.3d
at 1254.2
1 Roberts does not ask us to expand our decision in Hennigh to find property
interests based on a state’s promises or practices, nor does Roberts pursue a
promissory estoppel claim.
2 To the extent the Speer memo is relevant, it does not support Roberts’ claim.
For example, Roberts points out that, according to the memo, the Range Master
Specialist position was initially approved as a “merit allocation with a grade of
P17/P21.” Aplt. Br. at 29; see also Aplt. App., Vol. 18 at 4323. The merit allocation
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 14

-- 14 of 30 --

15
While the district court erred in rejecting the Sheriff’s Office’s and the UPD’s
internal policies, that error was harmless. Internal policies may be “regulation[s]
plac[ing] substantive restrictions on the discretion to demote an employee,” Hennigh, 155
F.3d at 1254, thereby creating a property interest. Here, however, no policy placed such
substantive restrictions on the Sheriff’s discretion to transfer the Range Master.
Roberts points out two policies he believes do create a property interest: Sheriff
Office Policy 1-3-01.01 and UPD Policy 1-3-00.01. Sheriff Office Policy 1-3-01.01
specifies only that the Undersheriff, the Chief Deputy, and the Sheriff’s Executive
Secretary are appointed, “non-merit employees and serve at the pleasure of the Sheriff.”
Aplt. App., Vol. 4 at 547. UPD Policy 1-3-00.01 similarly specifies only that the
Undersheriff, Deputy Chief, Deputy Chief of Police Services, Chief Financial Officer,
Chief Legal Counsel, and Human Resources Director are appointed, “non-merit
employees and serve at the pleasure of the Sheriff [with some exceptions not relevant
here].” Id. at 549. Thus, these policies broaden, rather than limit, the Sheriff’s discretion
to reassign certain employees.
does not indicate that the Range Master Specialist was a “permanent appointment”
subject to dismissal only for cause. Rather, funding for the position was made
available by “a vacant Lieutenant allocation.” Aplt. App., Vol. 3 at 339. Roberts
also points out that the memo describes a “career ladder.” Aplt. Br. at 29; see also
Aplt. App., Vol. 18 at 4328. Yet, the existence of a career ladder does not constrain
the Sheriff’s ability to transfer the Range Master; thus, the career ladder does not
confer a property right in that position. At most, the career ladder might constrain
the Sheriff’s ability to change Roberts’ pay grade, but Roberts does not distinguish
his pay grade from his position.
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 15

-- 15 of 30 --

16
The policies also do not address the Sheriff’s discretion as applied to the “Range
Master” specifically; in fact, the polices do not address the Range Master at all. Roberts
asserts the exclusion of “Range Master” implies it is a non-appointed, merit position. See
Aplt. Br. at 24 (“If Range Master had been a non-merit position it would have been listed
on Policy 1-3-01.01 as an appointed at-will position from which the Sheriff could remove
or replace people[.]”). Yet Roberts provides no evidence that the policies are meant to be
exhaustive. See id. at 31 (citing only witness deposition). In short, although Sheriff’s
Office or UPD policies could be relevant to whether employees have property interests in
their positions, the policies that Roberts cites here do not establish such an interest.
Alternatively, even if Roberts did have a property interest, the interest was not
clearly established because the policies are ambiguous as to the Range Master position.
Frasier, 992 F.3d at 1015 (qualified immunity turns on whether an officer “could, as a
matter of law, reasonably have believed that his conduct was lawful in light of the clearly
established principles governing it”) (internal quotations and alterations omitted).3
3 At first blush, Frasier seems to be in some tension with Hennigh. Frasier
indicates that internal policies are not relevant to determining a § 1983 defendant’s
qualified immunity, but Hennigh indicates that internal policies are relevant to
determining a § 1983 plaintiff’s constitutional rights. However, Frasier and Hennigh
address different inquiries. Frasier only prohibits consideration of an internal policy
as a “valid interpretive source of the content of clearly established law.” 992 F.3d at
1015 (emphasis added). Hennigh illustrates that an internal policy may be the
substantive source of a protected property interest. Here, the Sheriff’s Office and the
UPD internal policies do not themselves pertain to the Range Master position, and
thus are not substantive sources of the property right. Rather, Roberts relies on those
policies solely as interpretative sources. This reliance is impermissible under
Frasier.
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 16

-- 16 of 30 --

17
Finally, the parties’ focus on whether “Range Master” is a “specialist position” is
inapposite. Merit Commission Policy 3140 describes the procedure for creating
“specialist positions.” A specialist position is defined as “[a] position filled by direct
appointment . . . where the position requires peculiar and exceptional qualifications of a
scientific, professional, or expert nature.” Aplt. App., Vol. 2 at 153. Procedure 5.1.1.2 of
Policy 3140 specifies that merit officers who are appointed to specialist positions
“maintain two classifications: the permanent merit rank and the appointed specialist
classification.” Id. at 155. “The officer permanent merit rank is attained through
appointment from a merit register based on a competitive merit examination; the
employee’s specialist appointment is based on the qualifications to fill the position.” Id.
Procedure 5.1.3 authorizes the Sheriff to “reassign the officer to a position within
the current category, in accordance with Merit Commission Policy 4400.” Id. Merit
Commission Policy 4400 defines “reassignment” as “the movement of an employee
serving in a specialist position back to his/her former category . . . .” Dkt. No. 5-4 at 2
(Merit Commission Policy 4400); see also id. at 7 (“The Sheriff may opt at any time to
transfer the employee to a position within their current rank. Said transfer may result in a
reduction in pay, but will be considered a reassignment and not a demotion.”).
But whether the Range Master position is a Specialist position does not determine
whether Roberts has a property interest in that position. As Procedure 4400 makes clear,
and as the parties seem to agree, the Sheriff has discretion to reassign a Specialist
position.
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 17

-- 17 of 30 --

18
Defendants’ assumption, and the crux of this dispute, seems to be that Specialist
positions and Merit positions are mutually exclusive. However, that assumption is
unsupported by record evidence. Here, as Procedure 5.1.1.2 makes clear, if Range
Master is a Specialist position, then Range Master carries separate Merit ranks and
specialist classifications. But Procedure 3100 does not describe a separate Merit rank for
“Range Master.” Roberts identifies no other policy or procedure constraining the
Sheriff’s discretion to reassign the Range Master. Thus, Roberts did not have a property
interest in his Range Master position, regardless of whether it was a “Specialist” position.
b. Roberts Has Not Produced Evidence Showing He Was Denied Adequate
Process.
“[A] pretermination ‘hearing,’ though necessary, need not be elaborate.”
Loudermill, 470 U.S. at 545; see also West v. Grand Cnty., 967 F.2d 362, 368 (10th Cir.
1992) (describing the due process requirements of a pretermination hearing as “not very
stringent”). “The tenured public employee is entitled to oral or written notice of the
charges against him, an explanation of the employer’s evidence, and an opportunity to
present his side of the story.” Id. “The Due Process Clause of the United States
Constitution entitles each citizen to notice and an opportunity to be heard prior to the
deprivation of a fundamental right.” Hennigh, 155 F.3d at 1256; see also Hulen v. Yates,
322 F.3d 1229, 1248 (10th Cir. 2003) (“Applying Loudermill to claims of denial of
pre-termination procedural rights, this circuit has required only the core of notice and an
opportunity to be heard.”).
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 18

-- 18 of 30 --

19
Roberts was afforded sufficient pre-deprivation process. As Roberts concedes,
Undersheriff Carver and Chief Deputy Hudson informed Roberts that his rank and pay
would be reduced and that he would be reassigned to patrol duties. Aplt. Br. at 21. That
meeting provided the minimal requirements of pre-deprivation notice. See West, 967
F.2d at 368 (“A brief face-to-face meeting with a supervisor provides sufficient notice
and opportunity to respond to satisfy the pretermination due process requirements of
Loudermill.”). Sheriff Winder also provided Roberts’ counsel a letter rejecting Roberts’
grievance and explaining that Roberts was transferred within his merit rank “under
[Winder’s] sole discretion as Sheriff.” Aplt. App., Vol. 3 at 307. That letter evidenced
the minimal requirements of an opportunity to be heard. Thus, Roberts received
sufficient pre-deprivation process. See Hulen, 322 F.3d at 1248 (finding sufficient
pre-deprivation process where plaintiff “was able to meet with the decisionmaker twice,
lodged repeated written complaints, and engaged the services of an attorney to attempt to
avoid the transfer”).
Alternatively, in light of West and Hulen, the unreasonableness of Defendants’
conduct was not “clearly established.” Wesby, 138 S. Ct. at 589 (unreasonableness must
be “beyond debate”).
B. Roberts Invited Error as to His State Law Claims.
Roberts asserts that the district court erred in granting summary judgment on his
claims under the Utah Constitution by basing its rulings on federal case law applicable to
claims brought under the Constitution of the United States. The Utah Supreme Court has
held that because the state and federal standards differ when a court is determining
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 19

-- 19 of 30 --

20
damages for a constitutional violation, “a federal court determination that the material
undisputed facts do not give rise to a federal constitutional violation does not preclude a
state court from deciding whether those same facts will give rise to a state constitutional
violation.” Jensen ex rel. Jensen v. Cunningham, 250 P.3d 465, 478 (Utah 2011). But
Roberts never argues that the state law standards afford him broader protection than the
federal standards.
Roberts seems to assert that, because there is some difference he does not explain
between Utah law and federal law as regards his constitutional claims, dismissal of his
claims brought under the Utah Constitution should have been “without prejudice” and not
“with prejudice.” See Aplt. Reply Br. at 30. This argument might have had some force if
Roberts had made such a request before the district court. See Jensen, 250 P.3d at 478
(Utah law “dictates an analysis of state constitutional law before addressing any federal
constitutional claims”); see also VR Acquisitions, LLC v. Wasatch Cnty., 853 F.3d 1142,
1149 (10th Cir. 2017) (“[W]e conclude that the district court should have simply declined
to exercise supplemental jurisdiction over VRA’s state-law claims after it dismissed
VRA’s federal claims.”). Not only did Roberts fail to make such a request, he linked his
state constitutional claims to federal constitutional caselaw before the district court. See,
e.g., Aplt. App., Vol. 3 at 529 (arguing that because “existing remedies under Utah law
and equity would not address Roberts’ injuries,” he is entitled to “general [and] punitive
damages to which he is entitled for the violation of his constitutional rights, [and] the
costs and attorney fees Roberts has incurred in this action”). Because Roberts “urged the
district court to adopt” the same analysis for both his federal and state law claims, “the
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 20

-- 20 of 30 --

21
invited-error doctrine precludes [Roberts] from arguing that the district court erred in
adopting [that] proposition . . . .” ClearOne Commc’ns, Inc. v. Bowers, 642 F.3d 735,
771 (10th Cir. 2011).
C. Defendants Have Shown Roberts Would Have Been Removed Even in the
Absence of an Improper Motivation.
The district court evaluated Roberts’ First Amendment claim under the five-prong
Garcetti/Pickering test. See Aplt. App., Vol. 21 at 5021; see also Garcetti v. Ceballos,
547 U.S. 410, 417 (2006); Pickering v. Bd. of Educ., 391 U.S. 563 (1968). Under that
test, a court must determine whether (1) the speech was made pursuant to the employee’s
official duties, (2) the speech was on a matter of public concern, (3) the government’s
interests as an employer in promoting efficient public service outweigh a plaintiff’s free
speech interests, (4) the speech was a motivating factor in the adverse employment
action, and (5) the same employment decision would have been made without the
protected speech. Trant v. Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014).
Roberts asserts that the district court should have applied the three-prong
“Anderson” test. Aplt. Br. at 49 (citing Anderson v. Coors Brewing Co., 181 F.3d 1171,
1178 (10th Cir. 2014)). Under that test, a plaintiff must show: “(1) she engaged in a
protected activity; (2) she was subjected to adverse employment action subsequent to or
contemporaneous with the protected activity; and (3) a causal connection between the
protected activity and the adverse employment action.” Anderson v. Coors Brewing, 181
F.3d at 1178. “The analytical framework pronounced in McDonnell Douglas Corp. v.
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 21

-- 21 of 30 --

22
Green, 411 U.S. 792, 802–04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), guides [the
Anderson test].” Id.
Roberts’ assertion that Anderson (or McDonnell Douglas) supplies the appropriate
test is without merit. As the district court correctly noted, this circuit has held that
“McDonnell Douglas has no useful role to play in First Amendment retaliation cases.”
Walton v. Powell, 821 F.3d 1204, 1210 (10th Cir. 2016) (Gorsuch, J.). Instead, “[t]he
familiar Garcetti/Pickering analysis governs First Amendment retaliation claims.” Trant,
754 F.3d at 1165 (citing Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192,
1202 (10th Cir. 2007)).4 Thus, the district court did not err in using the
Garcetti/Pickering test to analyze Roberts’ First Amendment retaliation claim.
But we conclude the district court erred in applying the Garcetti/Pickering test at
the fourth step. The district court acknowledged at least three witnesses testified that
Winder wanted to remove Roberts because Roberts did not support Winder’s 2006
election bid. Aplt. App., Vol. 21 at 5023; see also Aplt. App., Vol. 6 at 1089 (George
4 It appears possible Roberts has raised a First Amendment free association
claim, rather than a First Amendment speech claim. That is, the essence of Roberts’
First Amendment claim is that Winder removed him from the Range Master position
because Roberts did not support Winder in the 2006 election and, thereafter, was not
sufficiently enthusiastic in his support of Winder’s subsequent reelection bids. First
Amendment free association retaliation claims are evaluated under the Elrod/Branti
test, not the Garcetti/Pickering test. See generally Trujillo v. Huerfano Cnty. Bd. of
Cnty. Comm’rs, 349 F. App’x 355, 359–60 (10th Cir. 2009) (unpublished
disposition). This court need not resolve any of the potentially numerous issues
surrounding this question because Roberts has never asserted the district court erred
in treating his First Amendment claim as a speech-based retaliation claim and,
concomitantly, has never asserted the district court erred in failing to apply the
Elrod/Branti test to resolve this First Amendment claim.
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 22

-- 22 of 30 --

23
Nielsen affidavit, stating “Mr. Winder said that he wanted to replace Nicholas Range
Master [sic] because Roberts had not supported Mr. Winder in his political campaign for
Sheriff of Salt Lake County”); Aplt. App., Vol. 17 at 3902 (David Scott Kilgrow
testifying that Winder’s interest in moving Roberts from the Range Master position was a
“last-ditch effort to get even with Nick [Roberts].”); Aplt. App., Vol. 18 at 4101 (Beau
Babka testifying that Winder’s interest in moving Roberts from the Range Master
position “was politically motivated”). Despite these witnesses’ testimony, the district
court found no issue of material fact regarding Winder’s motivation for two reasons:
“(1) the vast gap between Roberts’ protected speech [in 2006] and his transfer from the
Range Master position [in 2017]; and (2) Roberts’ support for Winder in the 2010 and
2014 elections . . . .” Aplt. App., Vol. 21 at 5024.
The district court erred in discrediting this witness testimony on summary
judgment. As the district court recognized, “evidence such as a long delay between the
employee’s speech and the challenged conduct, or evidence of intervening events, tend to
undermine any inference of retaliatory motive and weaken the causal link.” Maestas v.
Segura, 416 F.3d 1182, 1189 (10th Cir. 2005) (internal citations omitted). Yet, the
plaintiffs in Maestas relied on inferences drawn from circumstantial evidence, including
the “temporal proximity between the speech and the challenged action,” and “evidence
the employer expressed opposition to the employee’s speech . . . .” Id. at 1189.
Similarly, in other cases, we have held that delays or intervening events may
prevent a plaintiff from establishing causation through inferences drawn from
circumstantial evidence. Compare Trant, 754 F.3d at 1166 n.3 (summary judgment for
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 23

-- 23 of 30 --

24
defendant proper where the plaintiff could “only argue that there was temporal proximity
between [plaintiff’s] counsel’s statement and [plaintiff’s] termination.”), with Walton,
821 F.3d at 1214 (summary judgment for defendant improper where plaintiff’s extensive
political affiliations, a news report critical of the plaintiff’s appointment, and close
temporal proximity “could support an inference not merely that the employer knew of the
employee’s [political] affiliation but acted on it”) (emphasis in original). Here, no
inferences are required because Roberts provided direct evidence of a discriminatory
motivation—witnesses claiming that Winder acted against Roberts because Roberts did
not support Winder’s 2006 election bid. And the only way the district court could reject
that direct evidence is by weighing the witnesses’ credibility—something which is
impermissible on summary judgment. See Anderson v. Liberty Lobby, 477 U.S. at 255
(“Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge, whether he is ruling on
a motion for summary judgment or for a directed verdict.”).
The district court’s analysis is more appropriately addressed under the
Garcetti/Pickering fifth step. This step ensures a plaintiff cannot “prevent his employer
from assessing his performance record and reaching a decision not to rehire on the basis
of that record, simply because the protected conduct makes the employer more certain of
the correctness of its decision.” Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 286 (1977). “The relevant question then . . . [is] whether even without the
improper motivation the alleged retaliatory action would have occurred.” Trant, 754
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 24

-- 24 of 30 --

25
F.3d at 1168 (quoting Anemone v. Metro. Transp. Auth., 629 F.3d 97, 120 (2d Cir.
2011)).
“Summary judgment is appropriate on the fifth step when ‘any reasonable jury
would [have found] that [the plaintiff] would have been terminated even absent any
desire on the Defendant[’s] part to punish him in retaliation for his allegedly protected
speech.’” Id. at 1167 (quoting Anemone, 629 F.3d at 117 (2d Cir. 2011)) (alterations in
original). And, perhaps most importantly, at the fifth step, the burden remains with the
defendant. Walton, 821 F.3d at 1211 (“[A] defendant seeking to prevail at summary
judgment must show a reasonable factfinder . . . would have to . . . accept its affirmative
defense.”). “Unlike in the McDonnell Douglas burden-shifting framework, the burden
does not shift back to a plaintiff to show pretext in First Amendment retaliation claims.”
Dye, 702 F.3d at 295.
Winder provided several neutral reasons for removing Roberts as Range Master,
including Roberts “provid[ing] preferential treatment to the UPD Officers over the
Sheriff’s Office officers . . . [and] the environment at the Range ma[king] training
difficult.” Aplt. App., Vol. 7 at 1457 (Winder Decl., ¶ 29). Sheriff Rivera agreed with
Winder’s assessment and testified that she could not transfer Roberts back to the Range
because of his preferential treatment. Aplt. App., Vol. 21 at 4955 (“[Roberts’] approach
to it was he treated unified police officers much better than he did the sheriff’s side.
They all work under office of the sheriff. I need all of them treated the same. It doesn’t
matter which badge or which patch you wear. And I do not believe Nick is the best
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 25

-- 25 of 30 --

26
person for that position.”); see also id. (“I need someone that can bring people together
and treat people fairly. . . . I don’t believe Nick is the right person for the job.”).
Sheriff Rivera’s testimony reflected a deep knowledge of the UPD prior to her
entry into office. She recounted serious uncontested issues in the Sherriff’s Department
regarding how Roberts ran the firing range and taught marksmanship. Indeed, Sheriff
Rivera testified that Roberts’ replacement, Todd Griffiths, succeeded in the job as Range
Master because he, unlike Roberts, was able to unify UPD and Sheriff Officers in the
operation of the Range. This testimony, considered in the context of the entire record,
makes it reasonable to conclude, as a matter of law, that Roberts failed to create an issue
of fact as to whether Winder’s impermissible motive was a significant motivating cause
of Roberts’ transfer in April 2017.
Moreover, the eleven-year delay between Roberts’ protected speech and the
adverse action further supports the district court’s conclusion that Roberts would have
been removed at that time regardless of whether his speech was a motivating factor.
Roberts claims his performance reviews show otherwise. See Aplt. Br. at 60–61.
But those performance reviews only describe Roberts’ job responsibility as “work[ing]
with both the UPD and SO [Sheriff’s Office] weapons training . . . .” Aplt. App., Vol. 16
at 3731; see also id. at 3732 (“Rangemaster Roberts manages both the UPD and Sheriff’s
Office firearms.”); id. at 3734 (“Range Master Roberts trains personnel from the Unified
Police Department, the Salt Lake County Sheriff’s Office, and several other law
enforcement agencies.”). His performance reviews do not describe whether Roberts met
that duty equally with regards to both offices. And to the extent the performance reviews
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 26

-- 26 of 30 --

27
are positive, they tend to focus on Roberts’ treatment of the UPD officers—not Sheriff’s
Office officers. See, e.g., id. at 3734 (“Range Master Roberts is a valuable resource and a
great asset to the Unified Police Department and the law enforcement community.”); id.
3735 (“[Roberts] is dedicated to maintaining the safety of every member of the UPD.”).
Considering Rivera’s testimony and the absence of contradictory evidence, Defendants
have met their burden to show Roberts would have been removed as Range Master even
in the absence of any improper motivation.
The district court also correctly held that Roberts’ 2009 request for a pay increase
was not “a matter of public concern,” and thus not protected speech. Aplt. App., Vol. 21
at 5025. “Speech is a matter of public concern if it is ‘of interest to the community,’ and
we ‘focus on the motive of the speaker and whether the speech is calculated to disclose
misconduct or merely deals with personal disputes and grievances unrelated to the
public’s interest.’” Trant, 754 F.3d at 1165 (quoting Lighton v. Univ. of Utah, 209 F.3d
1213, 1205, 1224 (10th Cir. 2000)). Roberts’ dispute regarding his own pay was a
“personal dispute,” and not a matter of “public concern.” See Brammer-Hoelter, 492
F.3d at 1206 (“Plaintiffs’ complaints about their own salaries and bonuses are similarly
matters of personal concern.”).
D. Because Winder Was Entitled to Summary Judgment, UPD and Rivera
Were Also Entitled to Summary Judgment.
Roberts does not assert the UPD or Rivera are independently liable. Instead,
Roberts asserts they are liable because they “approved and ratified” his termination. See
Aplt. Br. at 52; see also Aplt. App., Vol. 1 at 95 (Answer at ¶ 24: “Admit the allegation
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 27

-- 27 of 30 --

28
in ¶ 99 [sic] that the UPD Board approved and ratified Sheriff Winder’s decision to
eliminate the specialist position of range master and to reassign Plaintiff according to his
merit rank.”). Because Winder’s underlying decision did not violate Roberts’
constitutional rights, neither did the UPD’s ratification of that decision.
E. Roberts Has Not Made a Prima Facie Case of Age Discrimination.
A claim of age discrimination requires plaintiffs to show they (1) are a member of
the class protected by the ADEA, (2) suffered an adverse employment action, (3) were
qualified for the employment position at issue, and (4) were treated less favorably than
others not in the ADEA protected class. Jones v. Okla. City Public Schs., 617 F.3d 1273,
1279 (10th Cir. 2010). Only if a plaintiff “establishes a prima facie case [does] the
burden shift[] to the employer ‘to articulate some legitimate, nondiscriminatory reason’
for its action.” Rivera v. City and Cnty. of Denver, 365 F.3d 912, 920 (10th Cir. 2004)
(quoting McDonnell Douglas, 411 U.S. at 802). “Should the defendant carry this burden,
the plaintiff must then have an opportunity to prove by a preponderance of the evidence
that the legitimate reasons offered by the defendant were not its true reasons but were a
pretext for discrimination.” Id. (internal quotation and alterations omitted).
Roberts fails to make a prima facie case. Even if he makes an adequate showing
that he meets the first three elements, he fails to show he was treated less favorably than
others not in the ADEA protected class. Were he to rely on the age difference between
he and his replacement, the age difference must be “sufficiently substantial to raise an
inference of age discrimination.” Frappied v. Affinity Gaming Black Hawk, LLC, 966
F.3d 1038, 1058 (10th Cir. 2020). Generally, “an age difference of less than ten years is
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 28

-- 28 of 30 --

29
not [sufficiently substantial].” Id. Here, Roberts was fifty-nine when removed from the
Range Master position. Griffiths, his replacement, was fifty-five. That Roberts was
replaced by someone only four years his junior does not give rise to an inference of age
discrimination.
Roberts does not address the four-year age difference in his briefing, but instead
jumps directly to pretext. But we can only reach pretext “if the plaintiff establishes a
prima facie case . . . .” Rivera, 365 F.3d at 920. The four-year age difference here does
not give rise to an inference of discrimination. Further, Roberts had not made any
argument regarding how or if he was treated less favorably than others not covered under
the ADEA. In light of these failings, we conclude Roberts has not established a prima
facie case under the ADEA.
F. The District Court Did Not Abuse Its Discretion in Denying
Reconsideration.
“We review a district court’s decision denying a motion for reconsideration for
abuse of discretion.” Spring Creek Expl. & Prod. Co. v. Hess Bakken Inv., II, LLC, 887
F.3d 1003, 1024 (10th Cir. 2018) (citation omitted). “Under an abuse of discretion
standard, a trial court’s decision will not be disturbed unless the appellate court has a
definite and firm conviction that the lower court made a clear error of judgment or
exceeded the bounds of permissible choice in the circumstances.” Id. When determining
whether to reconsider an interlocutory order, “‘the district court is not bound by the strict
standards for altering or amending a judgment encompassed in Federal Rules of Civil
Procedure 59(e) and 60(b),’ which govern a district court’s reconsideration of its final
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 29

-- 29 of 30 --

30
judgments.” Id. (quoting Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1223 n.2 (10th Cir.
2008)).
The district court did not abuse its discretion. The district court recognized that
Roberts sought reconsideration based, in part, on Defendants’ failure “to produce
documents that Roberts requested during discovery . . . .” Aplt. App., Vol. 18 at 4338.
The district court nonetheless denied reconsideration because the newly discovered
evidence did not affect its previous ruling. As the district court found, two of the
documents—the Sheriff’s Office Merit Seniority Lists and the UPD Merit Seniority
Lists—were “unofficial lists.” Id. at 4337. Thus, those lists did not place “substantive
restrictions on the discretion to demote an employee . . . .” Hennigh, 155 F.3d at 1254.
Similarly, the “Notice of Personnel Action” did not place substantive restrictions on
Defendants’ discretion. As discussed above, while the newly discovered evidence might
indicate that “Range Master” was treated as a Merit rank, the evidence does not indicate
that “Range Master” was, in fact, a Merit rank.
IV
We AFFIRM the district court’s grant of summary judgment and denial of
reconsideration.
Appellate Case: 20-4082 Document: 010110595742 Date Filed: 10/26/2021 Page: 30

-- 30 of 30 --