Oleynikova v. Bicha , 453 F. App'x 768 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
December 21, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
TAISSIYA OLEYNIKOVA,
Plaintiff - Appellant,
No. 11-1017
v.
(D.C. No. 1:09-CV-01019-PAB-KMT)
(D. Colo.)
REGGIE BICHA, GALINA KRIVORUK,
RONALD OZGA,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, TYMKOVICH, Circuit Judge, and EAGAN, **
Chief District Judge.
This appeal arises from a 42 U.S.C. § 1983 action for damages brought by
Appellant Taissiya Oleynikova, an employee of the State of Colorado,
Department of Human Services (DHS) Office of Information Technology Services
(OITS), against Appellees Reggie Bicha, Executive Director of DHS, in his
official capacity, and Galina Krivoruk and Ronald Ozga, employees of DHS, in
their individual capacities. At issue is whether the district court properly granted
*
This order and judgment is not binding precedent, except under the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.
**
The Honorable Claire V. Eagan, Chief Judge of the United States District
Court for the Northern District of Oklahoma, sitting by designation.
summary judgment to Appellees on Plaintiff’s § 1983 complaint, which alleges
that Plaintiff was retaliated against in violation of the First Amendment of the
United States Constitution. We exercise our jurisdiction under 28 U.S.C. § 1291and affirm.
I. BACKGROUND
Plaintiff has been employed by OITS since 1999 and her current position is
classified as an “Information Technology Professional - I.” Plaintiff is part of the
“Trails” group of OITS, which provides information technology support for
Colorado’s child welfare services. From approximately 2005 through 2007,
Plaintiff’s chain of supervision included her immediate supervisor Chuck Chow,
Krivoruk, now an Applications Director, Ozga, the Deputy Chief Information
Officer, and Ronald Huston, the Chief Information Officer. Plaintiff worked
closely with Chow and the two of them shared an office during much of the
relevant time period. Krivoruk and Plaintiff had known each other prior to
Plaintiff’s employment at DHS, and Krivoruk had been instrumental in helping
Plaintiff get the job. During 2005, a dispute arose within the Trails group
regarding an outside contractor, Meggin Bennabhaktula. Plaintiff’s statements in
relation to this dispute form the basis of this litigation.
Bennabhaktula was hired as an outside contractor by OITS in 2005 to
design and implement software for the Trails team. Bennabhaktula’s work was
supervised by Krivoruk, but Bennabhaktula worked with Chow to a certain extent.
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Around March 2005, Bennabhaktula complained to Krivoruk that Chow and
Plaintiff were not cooperating with her and that Chow was “sabotaging” her. R.
Vol. 1 at 197. Krivoruk discussed the matter with Chow on April 4, 2005, at
which time Chow stated that Bennabhaktula was lying, had not been coming to
work, was not communicating with him regularly, and had missed deadlines. The
next day, Krivoruk held a meeting with Chow and Bennabhaktula. Krivoruk
stated that the meeting was “emotional on both sides” and it was decided that
Krivoruk would supervise the day-to-day activities of Bennabhaktula’s project.
Id. at 205. After this meeting, Chow went to Ozga and stated that he believed
Bennabhaktula should be fired. Chow then unilaterally blocked Bennabhaktula’s
access to the computer system because he believed she was a security risk.
Shortly thereafter, Krivoruk and Chow had at least two heated exchanges in which
Krivoruk told Chow to restore Bennabhaktula’s access. Chow stated that
Krivoruk screamed at him and threatened to suspend him. Krivoruk stated that
Chow raised his voice, stood uncomfortably close to her, and said that he would
“show [her] who’s the boss here.” Id. at 208.
After these exchanges, Krivoruk telephoned Plaintiff to discuss the
situation. Krivoruk stated that she called Plaintiff because she was frightened and
wanted to be comforted. Krivoruk told Plaintiff about the dispute and said that
Chow had threatened her. Plaintiff stated that she was surprised and did not
believe Chow would threaten Krivoruk. Plaintiff further stated that she agreed
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with Chow that Bennabhaktula was not performing her duties and that it was a
waste of taxpayer money to continue to pay her. 1
On April 25, 2005, Plaintiff emailed Krivoruk, stating that she felt
“insulted” by Bennabhaktula because Bennabhaktula had accused her of lying.
Id. at 268. Plaintiff wrote that “[i]t hurts my feelings badly . . . . It would be
nice of [Bennabhaktula] if she calls me or e-mails me saying that she was sorry
and did not want to hurt my feelings . . . . [as in original] Otherwise I will think
of [Bennabhaktula] as of a dishornest [sic] person with no dignity.” Id.Sometime after this email, Plaintiff met with Krivoruk to discuss the situation.
Plaintiff’s recollection of the meeting is that she stated that she did not want to
get human resources involved, but just wanted an apology from Bennabhaktula.
Over the next few months, Plaintiff began seeking a promotion within her
department. Plaintiff alleges that Krivoruk and Ozga repeatedly thwarted her
efforts to receive a promotion and/or refused to grant her a promotion, in
retaliation for Plaintiff’s statements regarding Bennabhaktula. In July 2005,
Plaintiff emailed Huston, stating that she was being “denied advancement.” Id. at
283. Plaintiff’s email does not explicitly allege retaliation nor does it mention
any concerns regarding use of taxpayer money. As a result of Plaintiff’s email, a
1
Krivoruk disputes that Plaintiff made these statements about
Bennabhaktula during this telephone call. Construing the evidence in the light
most favorable to the non-moving party, we will presume that Plaintiff made
these statements at that time.
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meeting took place in October 2005 among Plaintiff, Chow, Krivoruk, Ozga, and
Huston to discuss Plaintiff’s concerns. At this meeting, Plaintiff reiterated her
opinion that employing Bennabhaktula was a waste of taxpayer money. Plaintiff
also stated that she believed Krivoruk was retaliating against her because Plaintiff
had not taken Krivoruk’s side in the dispute over the contractor.
In March 2006, Plaintiff filed a complaint of retaliation with the DHS
Employment Affairs Division Civil Rights Unit. The remedy requested by
Plaintiff in that complaint was “to be compensated for my financial and moral
losses.” R. Vol. 2 at 363. In April 2006, Plaintiff sent an email to Huston raising
concerns about her performance evaluation. In response, Huston held a meeting
with Plaintiff, Krivoruk, and Ozga. At this meeting, Plaintiff stated that she
believed the process by which comments were being collected for her evaluation
was improper and that this process was part of the retaliation against her for
taking Chow’s side in the dispute regarding Bennabhaktula. Plaintiff reiterated
her opinion that hiring Bennabhaktula was a waste of public money. Huston met
with Plaintiff individually in May 2006, at which time Plaintiff discussed her
concerns about her promotion, mentioned other perceived irregularities in
Krivoruk’s management of personnel, and again stated that she believed she was
being retaliated against for taking Chow’s side in the earlier dispute. In August
2006, Plaintiff sent an email to Huston asking for an update on the status of her
complaints regarding her promotion and the alleged retaliation by Krivoruk and
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Ozga.
In January 2007, Plaintiff sent a lengthy email to Karen Beye, the newly
appointed Executive Director of DHS, summarizing her complaints from the
previous two years about retaliation and lack of promotion. In February 2007,
Plaintiff complained to her new supervisor, Van Head, and team leader, Bruce
Rensel, that she was being retaliated against for the prior statements regarding
Bennabhaktula. In March 2007, Plaintiff brought these same concerns to Richard
Gonzales, the Executive Director of the Department of Personnel and
Administration (DPA). Gonzales referred Plaintiff’s case to a state personnel
rules interpreter, who investigated. The investigation resulted in a finding that
Plaintiff had not been treated “unfairly or improperly.” Id. at 447. In May 2007,
Plaintiff emailed Gonzales asking to meet with him “to discuss not only my
personal issues but the issues that are of great concern to me as a taxpayer or just
a Colorado resident.” R. Vol. 3 at 1005. Plaintiff then met with Gonzales and
reiterated her position that employing Bennabhaktula was a waste of public funds
and again stated that she had been retaliated against for voicing that opinion.
In January 2008, Plaintiff sent a two-page email to Gonzales and others, in
which Plaintiff again summarized her situation. Plaintiff wrote:
I strongly believe that if I had not been caught in the
middle of [Krivoruk’s] fight with my ex-supervisor
Chuck Chow, I would have been promoted . . . .
[Krivoruk] and I were friends before the fight with
[Chow] took place. If it were not for the bad
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atmosphere followed [sic] that fight, nobody would have
ever questioned whether my performance or tasks were
qualified for [a promotion].
R. Vol. 2 at 413. Following this meeting, a DPA consulting services supervisor
continued to investigate Plaintiff’s situation. In March 2008, the DPA supervisor
emailed Plaintiff stating that there did not appear to be any irregularity in her job
evaluations or lack of promotion and informed Plaintiff of formal grievance
procedures. On April 21, 2008, Plaintiff filed a charge of discrimination with the
United States Equal Employment Opportunity Commission, alleging age
discrimination and retaliation. Plaintiff filed a whistleblower complaint with the
state personnel board on July 2, 2008.
The complaint in this case was filed on May 1, 2009, alleging that
Defendants discriminated against Plaintiff based on her age and that Defendants
retaliated against Plaintiff in violation of her First Amendment right to freedom of
speech. The district court granted summary judgment to Defendants on both
claims. Plaintiff now appeals the district court’s ruling on the retaliation claim
only.
II. ANALYSIS
We review a district court’s grant of summary judgment de novo, applying
the same standard as the district court. Hackworth v. Progressive Cas. Ins. Co.,
468 F.3d 722, 725 (10th Cir. 2006), cert. denied, 550 U.S. 969 (2007). Summary
judgment is proper only if the movant shows “that there is no genuine dispute as
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to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). 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.” Citizens for Peace in Space
v. City of Colo. Springs, 477 F.3d 1212, 1219 (10th Cir. 2007).
Plaintiff alleges that she was denied promotion in retaliation for speaking
out against her department’s employment of Bennabhaktula. “[T]he First
Amendment bars retaliation for protected speech.” Crawford-El v. Britton, 523
U.S. 574, 592 (1998). “[A] public employee does not relinquish First Amendment
rights to comment on matters of public interest by virtue of government
employment.” Connick v. Myers, 461 U.S. 138, 140 (1983). “Rather, the First
Amendment protects a public employee’s right, in certain circumstances, to speak
as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S.
410, 417 (2006). However, the interests of public employees in commenting on
matters of public concern must be balanced with the employer’s interests “in
promoting the efficiency of the public services it performs through its
employees.” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); see also
Garcetti, 547 U.S. at 420 (“The Court’s decisions, then, have sought both to
promote the individual and societal interests that are served when employees
speak as citizens on matters of public concern and to respect the needs of
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government employers attempting to perform their important public functions.”).
The Court in Pickering sought to achieve this balance through the adoption
of a four-part test to be implemented in public-employee, free-speech cases. See
Kent v. Martin, 252 F.3d 1141, 1143 (10th Cir. 2001) (describing Pickering test).
In Garcetti, the Court expanded on the Pickering test by adding a fifth, threshold
inquiry that seeks to determine whether the speech at issue was made pursuant to
the public employee’s official duties. Garcetti, 547 U.S. at 421. Thus, after
Garcetti, “it is apparent that the ‘Pickering’ analysis of freedom of speech
retaliation claims is a five step inquiry which we now refer to as the
‘Garcetti/Pickering’ analysis.” Brammer–Hoelter, 492 F.3d at 1202; see also
Couch v. Bd. of Trs. of the Mem’l Hosp., 587 F.3d 1223, 1235 (10th Cir. 2009)
(“When analyzing a free speech claim based on retaliation by an employer, this
court applies the five-prong Garcetti/Pickering test.”).
The Garcetti/Pickering test includes the following inquiries:
(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.
Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009). The instant appeal
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concerns only the second prong of this test: whether Plaintiff’s speech was on a
matter of public concern. Speech that is of no public concern is not protected and
the inquiry ends.
Whether Plaintiff’s statement was on a matter of public concern is a
question of law. Baca v. Sklar, 398 F.3d 1210, 1219 (10th Cir. 2005). “Matters
of public concern are those which can ‘be fairly considered as relating to any
matter of political, social, or other concern to the community.’” Gardetto v.
Mason, 100 F.3d 803, 812 (10th Cir. 1996) (quoting Connick, 461 U.S. at 146).
“Statements revealing official impropriety usually involve matters of public
concern. Conversely, speech that simply airs grievances of a purely personal
nature typically does not involve matters of public concern.” Brammer-Hoelter v.
Twin Peaks Charter Acad., 492 F.3d 1192, 1205 (10th Cir. 2007) (internal
citations and quotations omitted). “It is not sufficient that the topic of the speech
be of general interest to the public; in addition, what is actually said must meet
the public concern threshold.” Burns v. Bd. of Cnty. Comm’rs, 330 F.3d 1275,
1286 (10th Cir. 2003) (internal quotation omitted).
“Whether an employee’s speech addresses a matter of public concern must
be determined by the content, form, and context of a given statement, as revealed
by the whole record.” Connick, 461 U.S. at 147-48. In addition, we may consider
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
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public’s interest.” Lighton v. Univ. of Utah, 209 F.3d 1213, 1224 (10th Cir.
2000).
Applying this standard, the district court held that Plaintiff’s speech
concerning Bennabhaktula was not a matter of public concern because the
“context reveals plaintiff’s motive in making it was not that of a concerned
citizen,” but instead that Plaintiff sought to “redress her personal grievance and
defend her supervisor.” R. Vol. 4 at 12-13. Plaintiff argues that the district court
erred in not finding that her speech inherently involved a matter of public concern
because it dealt with the alleged waste of public funds. Plaintiff also argues that
the district court erred by considering all of her speech as a unitary whole and by
improperly focusing on plaintiff’s motive in making the speech.
Plaintiff, citing Brammer-Hoelter, argues that the district court erred in
considering all of Plaintiff’s speech as a whole rather than separately considering
each incidence of speech. However, Plaintiff appears to have misunderstood our
holding in Brammer-Hoelter. In Brammer-Hoelter, we stated that “in some cases,
a pattern of speech may be considered as a unitary whole for determining whether
it addresses matters of public concern. . . . [I]t is appropriate to conduct such a
unitary analysis when . . . the speech involves multiple instances but only one
subject.” Brammer-Hoelter, 492 F.3d at 1205 (internal quotations omitted). In
the present case, all of Plaintiff’s speech concerned her opinion that
Bennabhaktula’s employment was a waste of money and the alleged retaliation
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against Plaintiff resulting from her expression of that opinion. Thus, Plaintiff
spoke on multiple occasions, but only on one subject. Her speech should
therefore be considered as a unitary whole. Id.Plaintiff next argues that the district court erred by focusing on Plaintiff’s
motive rather than on the content of Plaintiff’s speech. Plaintiff states that “the
content of the speech is the most important factor to be considered,” and she cites
cases from other jurisdictions in support. However, this court’s precedent does
not support such a categorical proposition. See Schalk v. Gallemore, 906 F.2d
491, 496 (10th Cir. 1990) (considering speaker’s motive as well as content of
speech); Wulf v. City of Wichita, 883 F.2d 842, 857 (10th Cir. 1989) (same). In
considering the content, form, and context of a plaintiff’s speech, we have
repeatedly held that a court may also consider the speaker’s motive in making the
speech. See, e.g., Brammer-Hoelter, 492 F.3d at 1205; Lighton, 209 F.3d at 1224.
However, we have never made the pronouncement that content could trump
motive or vice versa. Instead, the court must examine the entire record as a
whole. See Connick, 461 U.S. at 147-48.
It can be difficult to draw “the thin line between a public employee’s
speech which touches on matters of public concern, and speech from the same
employee which only deals with personal employment matters . . . .” Schalk v.
Gallemore, 906 F.2d 491, 495 (10th Cir. 1990). As noted above, speech
disclosing “any evidence of corruption, impropriety, or other malfeasance” on the
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part of public officials will generally be of public concern. Conaway v. Smith,
853 F.2d 789, 796 (10th Cir. 1988). However, as the Supreme Court has recently
reiterated, “[i]t is not a right to transform everyday employment disputes into
matters for constitutional litigation in the federal courts.” Borough of Duryea v.
Guarnieri, -- U.S. --, 131 S. Ct. 2488, 180 L. Ed. 2d 408 (2011).
When an employee’s speech raises concerns over the performance of
another employee, “in one sense the public may always be interested in how
government officers are performing their duties. But, as the Connick and
Pickering test has evolved, that will not always suffice to show a matter of public
concern.” Borough of Duryea, 131 S. Ct. at 2501. We have repeatedly held that
speech relating to internal personnel disputes is not of public concern, even where
that speech may tangentially concern expenditure of public funds. See, e.g.,
Brammer-Hoelter, 492 F.3d at 1206 (holding that plaintiffs’ “dissatisfaction with
their supervisors’ performance [were] not matters of public concern”); Lighton,
209 F.3d at 1225 (holding that speech regarding alleged misuse of public
equipment was not matter of public concern where plaintiff made statements “for
his own personal reasons”); see also Gardetto, 100 F.3d at 813-14 (“the First
Amendment protects neither public employee criticisms of internal management
decisions, nor public employee complaints about the structure of purely internal
administrative bodies”) (internal quotations and citations omitted).
Having considered the content, context, and form of Plaintiff’s speech, as
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well as having considered her motives, we do not find that Plaintiff’s speech is
protected by the First Amendment. Plaintiff’s initial statements regarding
Bennabhaktula were made in the context of an interpersonal dispute between her
immediate supervisor (Chow) and his supervisor (Krivoruk), both of whom were
friendly with Plaintiff. Plaintiff has repeatedly characterized her situation as one
where she was retaliated against for not “siding with” Krivoruk in this dispute.
Plaintiff’s statements have also demonstrated a personal dislike of Bennabhaktula
and a desire for Bennabhaktula to apologize to Plaintiff for perceived insults.
These circumstances strongly suggest that Plaintiff’s continued statements
regarding Bennabhaktula were made within the context of an intra-departmental
personnel dispute and were motivated by a personal grievance. Such statements
do not rise to the level of public concern. See Connick, 461 U.S. at 148 (holding
that speech made as extension of ongoing internal dispute were not matter of
public concern).
Plaintiff’s attempt to characterize her statements as regarding a matter of
public concern by invoking the “waste of public funds” is unsuccessful.
Plaintiff’s statements regarding the narrow issue of one contractor’s job
performance do not “sufficiently inform the issue as to be helpful to the public in
evaluating the conduct of government.” Wilson v. City of Littleton, 732 F.2d 765,
768 (10th Cir. 1984). Unlike many cases where courts find speech to be on
matters of public concern, the conduct complained of by Plaintiff did not reveal a
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potential “breach of public trust on the part of a public officer.” Conaway, 853
F.2d at 796 (citing Connick, 461 U.S. at 148). Nor did Plaintiff’s allegations have
any relation to public health or safety, which would be of interest to the public.
See Considine v. Adams Cnty., 910 F.2d 695, 700 (10th Cir. 1990) (holding that
statements alleging “numerous statutory and regulatory public health and safety
violations” at public work sites were on matters of public concern); Conaway, 853
F.2d at 796 (holding that speech concerning “substandard electrical work, which,
[plaintiff] felt, posed danger to public life, health, and safety” was on matters of
public concern); Wren v. Spurlock, 798 F.2d 1313, 1317 (10th Cir. 1986) (holding
that speech concerning sexual harassment of students and teachers at a public
school were on matters of public concern). Finally, Plaintiff’s repetition of her
allegations over the years and her repeated explanation of the alleged retaliation
were in the context of addressing her own career advancement and were not on a
matter of public concern.
To characterize Plaintiff’s speech in this case as a matter of public concern
would allow any public employee’s grievance with another public employee to
rise to the level of a public concern whenever the phrase “waste of public
resources” or similar language is contained in the speech. Because Plaintiff’s
statements were not on a matter of public concern, Defendants are entitled to
summary judgment.
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Therefore, we AFFIRM the judgment of the district court.
Entered for the Court
Claire V. Eagan
District Judge
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