Appellate Case: 21-2021 Document: 010110617951 Date Filed: 12/13/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 13, 2021 _________________________________ Christopher M. Wolpert Clerk of Court REYES FLORES; PAT FLORES,
Plaintiffs - Appellants,
v. No. 21-2021 (D.C. No. 1:18-CV-00402-KWR-JFR) CITY OF FARMINGTON; STEVEN (D. N.M.) HEBBE; NICK BLOOMFIELD; MATTHEW VEITH; TOM SWENK; TAFT TRACY, all in their individual capacities,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, PHILLIPS, and EID, Circuit Judges. _________________________________
Brothers Reyes Flores and Pat Flores appeal from the district court’s judgment
in favor of the defendants in their lawsuit alleging (1) retaliation against both of them
in violation of their First Amendment right to free speech, and (2) discrimination and
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-2021 Document: 010110617951 Date Filed: 12/13/2021 Page: 2
retaliation against Reyes in violation of both federal and state employment laws.1
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
The City of Farmington, New Mexico (the City), employs Reyes and Pat as
patrol officers with the Farmington Police Department. Both Reyes and Pat “are
practicing Christians” who “have long held deep-rooted Christian beliefs.” Aplt.
App., Vol. 1 at 170. Both Reyes and Pat previously served in capacities other than as
patrol officers. In addition to serving on the SWAT team, Reyes worked as a training
officer, an ethics instructor, and a field training officer (FTO). Pat oversaw the
training academy from 2014 to 2017.
I. Facts Underlying Reyes’ Claims
In September 2016, then-Sergeant Matt Veith notified Reyes that he was the
subject of an Internal Affairs (IA) investigation. The investigation arose out of a
report that a female employee had concerns that Reyes was hostile to women, but it
soon became intertwined with concerns about Reyes’ discussions of religion in
connection with his duties as a training officer, ethics instructor, and FTO. Veith’s
investigation report summarized multiple interviews indicating that Reyes had
explicitly or implicitly communicated religious beliefs to cadets and trainees,
including beliefs about women’s roles inside and outside the home. Ultimately,
Veith found that “[w]hile in a position of authority over numerous recruits as a
1 Because the appellants share a surname, to avoid confusion we refer to them by their first names. 2 Appellate Case: 21-2021 Document: 010110617951 Date Filed: 12/13/2021 Page: 3
Training Officer teaching Ethics, a firearms instructor, and an FTO, Ofc. Reyes
Flores used his personal religious views and lifestyle as an example of ethical
behavior which caused offense to subordinates causing a hostile work environment.”
Id. Vol. 2 at 515. He concluded that there was sufficient evidence to prove that
Reyes violated the City’s rules regarding equal employment opportunity and
affirmative action.
The department issued Reyes a written reprimand, removing him from training
responsibilities and the SWAT team and returning him to the Patrol Division. As a
result, he lost monetary stipends associated with the specialty positions. Reyes
requested access to the investigation memorandum and a grievance hearing, but
Police Chief Steve Hebbe stated that his requests were not grievable. A committee
for the City disagreed, however, and Reyes filed a grievance. In response, Hebbe
reduced the discipline to a counseling rather than a written reprimand but did not
reinstate Reyes to his former positions. Reyes alleges he has been denied subsequent
opportunities based on this discipline.
II. Facts Underlying Pat’s Claim
Pat was promoted to corporal in 2007 and to sergeant in 2011. He sought
promotion to lieutenant in 2014, 2015, 2016, and then 2017. After Pat’s
non-selection in 2017, he received feedback from two captains, Taft Tracy and
Baric Crum. Tracy noted that an interview panel perceived Pat to be a teacher, and
indicated that he “had not spent enough time hanging around the station and, as
[Tracy] put it, hobnobbing with the Chief.” Id. Vol. 3 at 618. Crum stated that he
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would have liked to have heard more about Pat’s accomplishments. Ultimately,
however, Tracy indicated to Pat that he was not chosen “because [his] personal
beliefs were too strong.” Id. “[Tracy] acknowledged that [Pat] and [his] brother,
Reyes, had very strong beliefs about marriage and religion and family and that those
were good, but they were too strong, and as a result – the specific example he gave
out . . . was that, if given the opportunity to walk in a Gay Pride parade, [Pat] would
not do it.” Id. Tracy “felt like [Pat’s] personal beliefs kept him from being in the
same direction as the chief.” Id. at 629.
Also in 2017, Pat’s three-year term as the director of the training academy
expired. Hebbe refused to renew the term for another year. Pat lost a stipend
associated with the position, and in 2018 he was placed back on patrol.
III. The Litigation
As relevant to this appeal, both Reyes and Pat asserted a 42 U.S.C. § 1983
claim alleging retaliation in violation of their First Amendment right to free speech.
Reyes further asserted claims of religious discrimination and retaliation in violation
of Title VII of the Civil Rights Act of 1964 and the New Mexico Human Rights Act
(NMHRA). On the First Amendment claim, the district court (1) granted judgment
on the pleadings to the individual defendants based on qualified immunity, and
(2) granted summary judgment to the City, concluding that Reyes and Pat had not
demonstrated any constitutional violation. The district court further granted
summary judgment to the City on Reyes’ Title VII claims, and to all the defendants
on his NMHRA claims, holding that Reyes failed to establish that the City’s
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proffered reasons for its actions were pretext for discrimination or retaliation. Reyes
and Pat now appeal from the disposition of those claims.2
DISCUSSION
I. Standards of Review
“We review a district court’s grant of a motion for judgment on the pleadings
de novo, using the same standard that applies to a Rule 12(b)(6) motion.” Crane v.
Utah Dep’t of Corr., 15 F.4th 1296, 1302 (10th Cir. 2021) (internal quotation marks
omitted). “To survive a motion for judgment on the pleadings, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Id. at 1302-03 (footnote and internal quotation marks
omitted).
Similarly, “[w]e review a district court’s grant of summary judgment de novo,
applying the same standard as the district court.” Brammer-Hoelter v. Twin Peaks
Charter Acad., 492 F.3d 1192, 1201 (10th Cir. 2007). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
We “view the evidence and draw reasonable inferences therefrom in the light most
favorable to the nonmoving part[ies],” Reyes and Pat. Knopf v. Williams, 884 F.3d
2 To the extent that Reyes and Pat intended to appeal from the disposition of any other claims, their opening brief did not adequately address them. See Mid Atl. Cap. Corp. v. Bien, 956 F.3d 1182, 1211 (10th Cir. 2020) (holding that arguments that are inadequately briefed are waived).
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939, 946 (10th Cir. 2018). “Furthermore, because this case involves the First
Amendment, we have 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.” Brammer-Hoelter, 492 F.3d at 1201
(internal quotation marks omitted).
II. First Amendment Retaliation § 1983 Claim
A. Individual Defendants
The district court granted judgment on the pleadings to the individual
defendants based on qualified immunity. Individual government employees are
entitled to qualified immunity unless (1) they violated a constitutional or statutory
right, and (2) the right was clearly established at the time of action. See Reichle v.
Howards, 566 U.S. 658, 664 (2012). The court may address these requirements in
any order. See id. The district court did not address the constitutional-violation
prong, but instead granted judgment on the ground that Reyes and Pat had not shown
that the law was clearly established when the defendants acted.
“To be clearly established, a right must be sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.”
Id. (brackets and internal quotation marks omitted). “This ordinarily means there
must be a Supreme Court or Tenth Circuit decision on point, or the clearly
established weight of authority from other courts must have found the law to be as
the plaintiff maintains.” Crane, 15 F.4th at 1303 (internal quotation marks omitted).
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“The plaintiff bears the burden of citing to us what he thinks constitutes clearly
established law.” Id. (internal quotation marks omitted).
In their opening brief, Reyes and Pat focus on the factual aspects of the district
court’s dismissal decision, asserting that it misunderstood the allegations of the First
Amended Complaint and miscast the relevant issues. But their argument stops short
of identifying any opinion, from this or any other court, that would clearly establish
that the individual defendants’ actions constituted retaliation against Reyes and Pat in
violation of their First Amendment right to freedom of speech. Their failure to
challenge the ground for the district court’s ruling acts as a waiver. See Schreiber v.
Cuccinelli, 981 F.3d 766, 778 (10th Cir. 2020), cert. denied, 211 L. Ed. 2d 101
(U.S. Oct. 4, 2021) (No. 21-94).3 And “[i]f the plaintiff fails to satisfy either part of
the [qualified immunity] inquiry, the court must grant qualified immunity.” Knopf,
884 F.3d at 944 (internal quotation marks omitted). Because Reyes and Pat have
failed to show that the law was clearly established, we affirm the grant of qualified
immunity to the individual defendants on this claim.
B. City of Farmington
The district court granted summary judgment to the City on the § 1983 First
Amendment retaliation claim, concluding that Reyes and Pat had not established the
City violated their right to free speech. The parties agreed that the elements set forth
3 Reyes and Pat attempt to discuss the state of the law in their reply brief, but that effort comes too late. See High Desert Relief, Inc. v. United States, 917 F.3d 1170, 1187 (10th Cir. 2019) (holding that issues raised in reply brief but not in opening brief are waived). 7 Appellate Case: 21-2021 Document: 010110617951 Date Filed: 12/13/2021 Page: 8
in Garcetti v. Ceballos, 547 U.S. 410 (2006), and Pickering v. Board of Education,
391 U.S. 563 (1968), govern the analysis. Those elements are:
(1) whether the speech was made pursuant to an employee’s official duties; (2) whether the speech was on a matter of public concern; (3) whether the government’s interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff’s free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same employment decision in the absence of the protected conduct. Trant v. Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014) (internal quotation marks
omitted). The first three factors are questions of law, while the last two generally are
questions of fact. See id. “To prevail, a plaintiff must establish all five elements.”
Knopf, 884 F.3d at 945. The district court held that Reyes failed to satisfy the first
and third elements, and Pat failed to satisfy the fourth and fifth elements.
A. Reyes’ Claim
The district court held that Reyes failed to establish that his speech was not
pursuant to his official duties and that his free speech interests outweighed the
government’s interest, as an employer, in promoting the efficiency of the public
service. We need consider only the first element because the district court did not err
in concluding that Reyes’ speech was made pursuant to his official duties.
Among other issues, the IA investigation summarized interviews indicating
that Reyes made comments about his beliefs, including his beliefs about women,
while acting as an FTO or instructor. Female cadet A.P. reported that, while serving
as her FTO, Reyes “commented about his family, beliefs, and women,” including
“comments about women ‘being in their place.’” Aplt. App., Vol. 2 at 509. More
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than one female cadet stated that he spoke about his family; in one example, while
transporting cadets, including female cadets R.O. and C.M., he stated that his
daughters could not cut their hair until they were 18, and then he would get their hair
when they did. C.M. stated that she and R.O. “felt [the discussion] was weird and
inappropriate.” Id. at 510. R.O. also stated that while transporting cadets in a police
vehicle, Reyes would turn on Christian radio, ask if they liked the music, and then
say, “‘If you didn’t, too bad.’” Id. at 510. At least three interviewees stated that he
used examples from his own life and his own beliefs while teaching firearms and
ethics, and a fourth “said there was a ‘running joke’ that there was ‘more preaching
than teaching’ during firearms training.” Id. at 514.
Reyes asserts that the district court erred in assessing the defendants’ proffered
undisputed facts. We are not persuaded, however, that he adequately controverted
material facts. For example, the City asserted that the IA investigation began when
R.O. reported to Corporal Nick Bloomfield a concern that Reyes was hostile to
women. Reyes repeatedly asserts that R.O. denied she ever said that Reyes hates
women. See Aplt. Opening Br. at 20, 27, 31. But the evidence cited in support is
Veith’s deposition, in which he acknowledged that Reyes did not state to R.O. that he
hates women. See id. at 20 (citing Aplt. App., Vol. 2 at 484 (citing id. at 521)). That
is not the same as saying that R.O. never said to Bloomfield that Reyes hates women.
In another example, involving the Christian radio allegations, Reyes asserts that R.O.
stated that he was joking. See Aplt. Opening Br. at 21. But again, he
mischaracterizes R.O.’s position. In her IA interview, she stated that Reyes “tried to
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joke around with us, but it didn’t matter what our feelings were on something, it was,
‘nope, it’s mine, that’s how it’s going to be.’” Aplt. App., Vol. 2 at 545. R.O.’s
position thus is more accurately characterized as Reyes might say that he was joking,
but he really was not.
Reyes maintains that he did not speak about religion “in formal training and
instruction” and that he “has stated consistently that any such conversations related to
religion happened in the context of informal conversation and setting.” Aplt.
Opening Br. at 28-29; see also id. at 28 (objecting that “the district court cited to no
instance of speech that occurred in an instructional or training setting”). But he does
not specify what he means by “formal training and instruction” versus “informal
conversation and setting.” And as the district court noted, he did not describe the
circumstances of the allegedly informal speech. Reyes criticizes the district court for
this comment, stating that it was not his “burden on summary judgment to prove
where the contested speech occurred and when—that remains Defendants’ burden
throughout summary judgment.” Aplt. Opening Br. at 29. But it is an element of
Reyes’ claim, on which he bears the burden, that the contested speech was not made
pursuant to official duties. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d
1323, 1328 (10th Cir. 2007). And once the City set forth evidence to support its
version of the facts, which indicated that Reyes spoke while he was training cadets, it
was Reyes’ burden to offer contradictory evidence to create a genuine issue of
material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)
(“[W]hen a properly supported motion for summary judgment is made, the adverse
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party must set forth specific facts showing that there is a genuine issue for trial.”
(footnote and internal quotation marks omitted)).
This court has “taken a broad view of the meaning of speech that is pursuant to
an employee’s official duties.” Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d
741, 746 (10th Cir. 2010) (internal quotation marks omitted). “[W]e must take a
practical view of all the facts and circumstances surrounding the speech and the
employment relationship,” Brammer-Hoelter, 492 F.3d at 1204, “looking both to the
content of the speech, as well as the employee’s chosen audience, to determine
whether the speech is made pursuant to an employee’s official duties,” Rohrbough,
596 F.3d at 746.
Under a practical view, Reyes cannot create a genuine issue of material fact
simply by attempting to parse his speech into broad categories of formal instruction
and informal conversations. Courts have recognized that, in an instructional context,
a governmental employer has an interest in regulating an employee’s interactions
with students even outside of formal teaching time. See Piggee v. Carl Sandburg
Coll., 464 F.3d 667, 671 (7th Cir. 2006) (recognizing that “the instructor/student
relationship does not end the moment the instructional period is over”); Peloza v.
Capistrano Unified Sch. Dist., 37 F.3d 517, 522 (9th Cir. 1994) (per curiam) (“While
at the high school, whether he is in the classroom or outside of it during contract
time, Peloza is not just any ordinary citizen. He is a teacher.”); Bishop v. Aronov,
926 F.2d 1066, 1074 (11th Cir. 1991) (“Tangential to the [university’s] authority
over its curriculum, there lies some authority over the conduct of teachers in and out
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of the classroom that significantly bears on the curriculum or that gives the
appearance of endorsement by the university.”).
“[S]peech is made pursuant to official duties if it is generally consistent with
the type of activities the employee was paid to do.” Brammer-Hoelter, 492 F.3d
at 1203 (brackets and internal quotation marks omitted). “The ultimate question is
whether the employee speaks as a citizen or instead as a government employee—an
individual acting in his or her professional capacity.” Id. (internal quotation marks
omitted). During the summary judgment proceedings, Reyes admitted that, at the
very least, he discussed his religious beliefs “in the context of questions and inquiries
from other . . . employees,” including “fellow officers and trainees.” Aplt. App.,
Vol. 2 at 496 (emphasis added). Answering trainees’ questions and advising them on
behavior was generally consistent with the activities Reyes was paid to do as an
instructor and FTO. On this record, it was not error for the district court to conclude
that even if Reyes ostensibly was speaking informally, in his conversations with
trainees, he was speaking in his capacity as an employee rather than a citizen.
Because Reyes’ speech was made pursuant to his official duties, it did not
enjoy the protection of the First Amendment, see Garcetti, 547 U.S. at 421-22, and
the City did not violate his right to free speech by disciplining him. We therefore
affirm the grant of summary judgment on Reyes’ § 1983 retaliation claim.
B. Pat’s Claim
The district court assumed the truth of Pat’s averment that he had engaged in
private religious conversations in the workplace, outside of his official duties. The
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court then skipped to the fourth and fifth Garcetti/Pickering elements. Regarding the
fourth element, the court held that Pat failed to show his speech was a motivating
factor in Hebbe’s decisions not to promote him to lieutenant and not to extend his
assignment at the academy. Further, relying on the fifth element, the court held that
the City showed that Hebbe would have made the same decisions in the absence of
Pat’s speech. We need not consider the fourth element because the district court did
not err in granting summary judgment based on the fifth element.
“At the fifth step . . . the burden [] shifts to the defendant, who must show by a
preponderance of the evidence it would have reached the same employment decision
in the absence of the protected activity.” Trant, 754 F.3d at 1167 (internal quotation
marks omitted). “Summary judgment is appropriate on the fifth step when any
reasonable jury would have found that [the Defendants would have taken the same
action] even absent any desire on the Defendants’ part to punish [the plaintiff] in
retaliation for his allegedly protected speech.” Id. (brackets and internal quotation
marks omitted).
Hebbe made the promotion decision. But as the district court noted, the
interview process involved evaluation by two panels, one a mixed panel including
both community members and departmental leaders and the other a peer panel. The
panels asked the candidates the same questions and then scored them. The scores
were tallied and the candidates ranked. Both the mixed panel and the peer panel
rated the successful candidates higher than Pat. When totaled, the rankings placed
Pat sixth out of seven candidates.
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Pat argues that notwithstanding the panels’ rankings, he possessed superior
qualifications based on the baseline qualifications of education, experience, and
tenure. He asserts that the district court erred in relying on the rankings because
“[t]he record evidence supports the inference that Pat’s superior qualifications were
not considered in light of Hebbe’s views touching upon Pat’s religious beliefs.”
Aplt. Opening Br. at 36. But Pat has not shown that the members of the panels knew
about his religious speech or had any desire to retaliate against him. And yet both
panels rated him lower than the successful candidates. In light of this evidence, any
reasonable jury would find that Hebbe would not have promoted Pat in 2017 even
absent any desire to punish him for his religious speech. Cf. Couch v. Bd. of Trs.,
587 F.3d 1223, 1243 (10th Cir. 2009) (recognizing that an employer’s
implementation of “recommendations of an independent outside reviewer undermines
any inference that the action was motivated by retaliation”).
Hebbe also made the decision not to extend Pat’s assignment to oversee the
academy. The district court identified several incidents that Hebbe cited as examples
of why he was dissatisfied with Pat’s performance in that position. Pat states that the
incidents are disputed, but he has not adequately controverted them.4 In these
4 Pat discusses one incident, a sexual relationship between an academy employee and an underage female student. Pat’s belief that “he was not responsible for the incident” because it “occurred outside the workplace,” Aplt. Reply Br. at 24, does not controvert Hebbe’s belief that the incident was a “significant liability,” Aplt. App., Vol. 3 at 690-91. Pat further states that he was “unaware” of another incident, but he does not allege that the incident never occurred. Aplt. Reply Br. at 24. He does not address the two other matters the district court identified. 14 Appellate Case: 21-2021 Document: 010110617951 Date Filed: 12/13/2021 Page: 15
circumstances, any reasonable jury would find that Hebbe would not have extended
Pat’s term as director for an additional year even absent any desire to punish him for
his religious speech.
For these reasons, we affirm the grant of summary judgment to the City on
Pat’s § 1983 retaliation claim.
III. Title VII and NMHRA Claims
The district court concurrently analyzed Reyes’ Title VII and NMHRA
discrimination and retaliation claims using the McDonnell Douglas burden-shifting
framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973);
see also Smith v. FDC Corp., 787 P.2d 433, 436 (N.M. 1990) (adopting McDonnell
Douglas methodology for NMHRA cases). It assumed that Reyes established a
prima facie case of both discrimination and retaliation. It identified the City’s
proffered reason for disciplining Reyes—that he was inappropriately teaching his
personal ethics and beliefs, offending some trainees and cadets—as a legitimate,
non-discriminatory and non-retaliatory reason. It then held that Reyes failed to
muster sufficient evidence to allow a reasonable factfinder to conclude that the City’s
expressed reasons were pretext for discrimination or retaliation. Even if the City was
wrong in its conclusion about Reyes’ behavior, the district court concluded, nothing
in the record showed that it did not honestly believe the results of the IA
investigation.
“[T]o support an inference of pretext, a plaintiff must come forward with
evidence that the employer didn’t really believe its proffered reasons for action and
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thus may have been pursuing a hidden discriminatory agenda.” Dewitt v. Sw. Bell
Tel. Co., 845 F.3d 1299, 1307 (10th Cir. 2017) (ellipses and internal quotation marks
omitted). “When reviewing a plaintiff’s contention of pretext, we examine the facts
as they appear to the person making the decision . . . .” Id. (internal quotation marks
omitted). “[O]ur role isn’t to ask whether the employer’s decision was wise, fair or
correct, but whether it honestly believed the legitimate, nondiscriminatory reasons it
gave for its conduct and acted in good faith on those beliefs.” Id. (brackets and
internal quotation marks omitted).
Relying on the same evidence discussed in connection with his § 1983 claim
against the City, Reyes argues that he presented sufficient evidence to establish
pretext.5 He takes issue with defendants’ proffered facts, but as stated above, we are
not persuaded that he adequately controverted material facts. For substantially the
reasons the district court discussed, Reyes failed to create a genuine issue of material
fact regarding the honest belief of the City’s decisionmakers in Veith’s investigation
report and his conclusion that Reyes acted inappropriately.
Because Reyes failed to establish pretext, we affirm the grant of summary
judgment on his Title VII and NMHRA claims.
5 Reyes attempts to “add[] the pretext evidence disputed through the Statement of Disputed Material Facts of his district court Response Brief.” Aplt. Opening Br. at 39. But because we do not allow incorporation by reference of district-court filings, we deem that portion of the argument waived. See Fulgham v. Embarq Corp., 785 F.3d 395, 410 (10th Cir. 2015). Similarly, we disapprove of the City’s assertions with regard to the § 1983 claims that arguments regarding the facts were “fully briefed below and the City will not burden the record with re-argument.” Aplee. Resp. Br. at 20, 21. 16 Appellate Case: 21-2021 Document: 010110617951 Date Filed: 12/13/2021 Page: 17
CONCLUSION
The district court’s judgment is affirmed.
Entered for the Court
Jerome A. Holmes Circuit Judge