Cheek v. City of Edwardsville , 324 F. App'x 699 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS September 10, 2008
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
JEFFREY CHEEK; ALVIN DOTY,
Plaintiffs-Appellants,
v. No. 07-3341
(D.C. No. 2:06-CV-02210-JWL)
CITY OF EDWARDSVILLE, (D. Kan.)
KANSAS; JOHN BROMAN;
JENNIFER BURNETT; TIM KELLY;
DOUG SPANGLER; LLOYD BETH,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges.
Plaintiffs Jeffrey Cheek and Alvin Doty, former police officers with the
City of Edwardsville (City), filed suit under 42 U.S.C. § 1983, alleging they were
discharged because they cooperated with the Kansas Attorney General (AG) in an
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
investigation into public corruption by City officials. They also brought state-law
claims asserting that the City breached its employment contracts with them by
failing to pay severance benefits. The district court entered summary judgment in
favor of defendants on plaintiffs claims that they were discharged in violation of
their First Amendment right to freedom of speech. Cheek v. City of Edwardsville,
514 F. Supp. 2d 1220 (D. Kan. 2007). In a separate order, the district court
granted summary judgment to defendants on plaintiffs’ breach-of-contract claims.
Cheek v. City of Edwardsville, 514 F. Supp. 2d 1251 (D. Kan. 2007). The court
later denied plaintiffs’ motion to alter or amend the judgment. We exercise
jurisdiction under 28 U.S.C. § 1291 and affirm.
Background
The district court provided a detailed summary of the facts and procedural
history involved in this case, and we need not restate that material here. Briefly,
plaintiffs were City police officers who were promoted to the newly-created
position of major in 2004. As majors, their job duties included investigating
criminal cases and internal affairs. Plaintiffs and other City officers regularly
sought assistance from outside law-enforcement agencies, such as the Kansas
Bureau of Investigation or the Federal Bureau of Investigation. At the relevant
time, defendant Spangler was the City Administrator, and defendants Broman,
Burnett, and Kelly were members of the City Council. Defendant Beth was
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appointed Interim Police Chief to replace Police Chief Steve Vaughan while the
corruption investigation was pending.
In late 2005 or early 2006, plaintiffs discovered evidence that Chief
Vaughn and Councilman Kelly had improperly influenced criminal and traffic
charges in order to help their friends and relatives. The standard procedure was
to report these allegations to the Chief of Police, but given the fact that he was
implicated, plaintiffs instead decided that the best procedure was to have a
police-union representative report the allegations to the Kansas AG. In February
and March of 2006, both plaintiffs provided information to the AG’s office
concerning the investigation. The City Council discharged plaintiff Cheek on
May 8, 2006; the Kansas AG’s office filed criminal charges against Chief
Vaughan and Councilman Lane on July 28, 2006; and the City Council discharged
plaintiff Doty on September 28, 2006. 1 Plaintiffs filed suit asserting that they
were fired in retaliation for exercising their First Amendment right to free speech.
Plaintiffs also brought state-law claims for breach of contract based on the City’s
refusal to honor the clause in each plaintiff’s contract providing for severance pay
equal to two years’ salary upon discharge.
The district court granted summary judgment in defendants’ favor on
plaintiffs’ § 1983 claims, holding “as a matter law that plaintiff Cheek and Doty’s
1
Defendants Broman, Burnett, and Kelly voted to discharge plaintiff Cheek.
Plaintiff Doty does not identify the Council members who voted to discharge him.
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speech was made pursuant to their official duties rather than as citizens, and
therefore that speech is not entitled to protection under Garcetti [v. Ceballos,
547 U.S. 410 (2006)].” Cheek, 514 F. Supp. 2d at 1232. Garcetti held that
“when public employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer discipline.”
Garcetti, 547 U.S. at 421. In a separate memorandum and order, the court
granted summary judgment to defendants on the contract claims, primarily
because the severance provision was not enacted as an ordinance, as required by a
Kansas statute, Kan. Stat. Ann. § 15-204 (applying to cities of the third class,
such as the City of Edwardsville). Cheek, 514 F. Supp. 2d at 1255-56.
On appeal, plaintiffs assert that they participated in the investigation
conducted by the Kansas AG as citizens, not as police majors, so their speech
falls outside Garcetti’s purview and is entitled to constitutional protection. They
argue that they did not initiate an investigation, interview witnesses, or otherwise
gather evidence regarding City officials’ illegal conduct. They further contend
that their contact with the AG’s office was not part of their job duties and was not
included in their job descriptions. For their breach-of-contract claims, plaintiffs
maintain that the district court erred in holding that the severance provisions were
not enforceable because they were enacted by resolution, rather than by
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ordinance. They point out that the City set the salaries of many City employees
by resolution.
Standards of Review
“We review the district court’s grant of summary judgment for the City
de novo, applying the same legal standard as the district court.” Shero v. City of
Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). Summary judgment is proper when
“the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “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 v. Twin Peaks Charter Acad., 492 F.3d 1192,
1201 (10th Cir. 2007) (quotation omitted). We also review de novo the district
court’s application and interpretation of Kansas state law. Copeland ex rel.
Copeland v. Toyota Motor Sales U.S.A., Inc., 136 F.3d 1249, 1250 (10th Cir.
1998).
Discussion
Among plaintiffs’ challenges to the summary judgment on their First
Amendment claims is their contention that the district court failed to give
adequate consideration to this circuit’s recent application of Garcetti in Casey v.
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West Las Vegas Independent School District, 473 F.3d 1323 (10th Cir. 2007).
Plaintiffs assert that in Casey this circuit developed a distinction between an
internal-agency report, which is not protected speech, and a report to an outside
investigative agency, which commands constitutional protection. But even
assuming for the sake of argument that the Kansas AG’s office qualified as an
outside agency in this case, Casey does not stand for the blanket proposition that
any report to an outside agency is entitled to protection under the First
Amendment.
In Casey, the plaintiff was the superintendent of schools who also
supervised the state’s Head Start Program. She directed a subordinate to report
violations of the Head Start qualifying-income regulations to the federal Head
Start agency, and she reported violations of the state open-meetings law to the
state attorney general. 473 F.3d at 1326. Because the report to the Head Start
agency was part of the plaintiff’s job responsibilities, it was not entitled to First
Amendment protection. Id. at 1329-32. In contrast, her report to the attorney
general of open-meetings violations “fell sufficiently outside the scope of her
office to survive even the force of the Supreme Court’s decision in Garcetti.” Id.
at 1332-33. Plaintiffs argue that intra-agency reporting is not protected, while a
report to an outside agency is protected, but Casey’s rationale was based not on
the nature of the agency, but on the nature of the plaintiff’s job duties. Having
reviewed Casey in light of plaintiffs’ claims, we conclude that the district court’s
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failure to discuss Casey in a substantive manner is not reversible error because, as
explained above, Casey does not support plaintiffs’ argument that it is the nature
of the agency that determines whether the speech at issue is protected.
As for plaintiffs’ remaining arguments, we have carefully considered them
in light of the record on appeal, the parties’ briefs, and the relevant law.
Applying the standards set out above, we conclude that plaintiffs have not
identified any reversible error in this case. Accordingly, we affirm the district
court’s comprehensive and thorough orders granting summary judgment in favor
of defendants for the reasons stated in its published memoranda and orders filed
August 24, 2007, and October 1, 2007, Cheek, 514 F. Supp. 2d 1220; Cheek,
514 F. Supp. 2d 1251, as well as in its unpublished order filed November 21,
2007, denying plaintiffs’ motion to alter or amend the judgment.
Conclusion
The judgment of the district court is AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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