Jensen v. Summit County , 128 F. App'x 37 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 20 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
KERWIN L. JENSEN,
Plaintiff-Appellant,
v. No. 04-4052
(D.C. No. 2:02-CV-663-TC)
SUMMIT COUNTY, (D. Utah)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and KELLY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
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.
*
This order and judgment is not binding precedent, except under the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.
Kerwin Jensen appeals the district court’s grant of summary judgment for
his former employer, Summit County, Utah, in this suit regarding the termination
of his employment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I.
Mr. Jensen was employed as the Director of Community Development of
Summit County, Utah. As Director, he was required to administer the community
development department, which handled planning, zoning, building permits,
building inspection, and zoning code enforcement, and to supervise the
department’s staff. He reported to the Board of County Commissioners.
Mr. Jensen’s employment with the county was governed by an employment
contract dated May 8, 2000 (the Contract). The Contract specified that the
relationship was one of employment at-will. Aplt. App. at 31, ¶ 1. It allowed the
county to terminate Mr. Jensen’s employment either with cause or without cause,
and it allowed Mr. Jensen to terminate his employment upon four weeks’ notice.
Id. at 33, ¶¶ 6, 8. If the county terminated Mr. Jensen’s employment with cause,
or if he terminated his employment, the Contract provided no severance benefits.
Id. , ¶¶ 6.a, 8. If the county terminated his employment without cause, however,
the Contract entitled him to payment of six months’ salary as a severance
payment, plus additional benefits. Id. , ¶ 6.b. The Contract defined “with cause”
to include “misfeasance or malfeasance of the responsibilities of the position,”
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and it defined “without cause” to include “reductions in force, forced resignation,
and other similar events.” Id. , ¶¶ 6.a, 6.b.
On November 2, 2001, Mr. Jensen was called into a meeting with the
commissioners and other county officials. He was told that the county intended to
terminate his employment for cause unless he tendered his resignation, and he was
offered an agreement providing for two months’ salary as a severance benefit.
The reasons given for terminating his employment fell into two categories:
(1) issues regarding his handling of his job duties (including failure to follow the
board’s directives promptly, failure to cite violations of the building codes
promptly, and failure to learn the building code), and (2) concerns that he had
discriminatory attitudes towards women (including that he had made comments
tending to belittle women, had stated that an employee got a new computer
monitor because he was a man, and had made a female employee uncomfortable
with questions he asked about her out-of-wedlock child).
On November 6, 2001, Mr. Jensen tendered a letter of resignation that
stated: “Since the Summit County Board of Commissioners has told me that
unless I resign by 5:00 p.m. on November 6, 2001, I will be terminated, I hereby
resign my position as County Development Director for Summit County.” Id. at
43. Considering his resignation a “forced resignation” entitling him to severance
benefits under the Contract, he declined to sign the proposed severance agreement
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and sued the county in Utah state court, asserting theories of breach of contract,
violation of due process, and wrongful termination. The county removed the
action to the district court, which denied Mr. Jensen’s motion for summary
judgment on his first breach of contract claim and granted the county’s motion for
summary judgment on all claims. Mr. Jensen appeals. 1
1
Before addressing the merits of the appeal, we consider the sufficiency of
the appendices. Mr. Jensen is represented by counsel, who has the responsibility
of providing “an appendix sufficient for considering and deciding the issues on
appeal,” 10th Cir. R. 30.1(A)(1), including copies of relevant motions (here, the
motions for summary judgment) and any responses or replies filed in connection
with the motions, 10th Cir. R. 10.3(D)(2). Mr. Jensen’s appendix does not
include a copy of his motion for partial summary judgment, the county’s motion
for summary judgment, the responses and replies filed with regard to the motions,
or the transcript of the district court’s hearing on the motions.
An appellant that fails to provide essential materials in the appendix risks
summary affirmance of the district court’s decision. See Travelers Indem. Co. v.
Accurate Autobody, Inc. , 340 F.3d 1118, 1120-21 (10th Cir. 2003); 10th Cir. R.
10.3(B). Here, however, we have belatedly been provided the written materials,
and in light of the parties’ failure to dispute on appeal that any other issue
relevant to the appeal arose during the district court hearing, we shall consider the
merits of the appeal even without having the transcript of the hearing. We note,
however, that the decision not to provide a transcript was risky. See, e.g.,
Questar Pipeline Co. v. Grynberg , 201 F.3d 1277, 1292 (10th Cir. 2000) (“[W]e
are reluctant to overturn a district court’s ruling without being able to examine
the evidence or arguments it heard in making its ruling.”); McGinnis v. Gustafson ,
978 F.2d 1199, 1201 (10th Cir. 1992) (dismissing appeal given impossibility of
informed appellate review in absence of transcript). Further, we admonish
Mr. Jensen’s counsel for neglecting to provide any of the written materials
initially, and we remind him of his duty to follow the appellate rules.
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II.
The primary issue in this appeal is whether the county breached the
Contract by not paying Mr. Jensen severance benefits upon termination of his
employment. Resolving this issue requires us to determine whether Mr. Jensen’s
letter of resignation, tendered in response to Summit County’s threat to terminate
him for cause, was a “forced resignation.” “We review the grant of summary
judgment de novo, applying the same standard as the district court.” Pacheco v.
Whiting Farms, Inc. , 365 F.3d 1199, 1201 (10th Cir. 2004). We apply the
substantive law of the state of Utah to Mr. Jensen’s breach of contract claims.
See BancOklahoma Mortgage Corp. v. Capital Title Co. , 194 F.3d 1089, 1103
(10th Cir. 1999).
Having reviewed the district court’s decision, the law, and the appellate
record, we conclude that Mr. Jensen’s resignation was not a “forced resignation”
under the Contract for substantially the reasons set forth in the district court’s
order dated February 20, 2004 (Order). Moreover, the district court correctly
found that, under Utah law, the county had cause to terminate Mr. Jensen’s
employment, and we also affirm that decision for substantially the reasons
discussed in the Order.
Finally, Mr. Jensen argues that, in light of the district court’s other
erroneous rulings, we should reverse the district court’s determination that he did
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not have a property interest to support his claim of due process violations.
Having concluded that the district court did not err, we affirm its decision with
regard to Mr. Jensen’s due process claim as well.
Mr. Jensen’s motion to submit additional materials in his appellate
appendix is GRANTED. The judgment of the district court is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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