F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS APR 29 1998
TENTH CIRCUIT PATRICK FISHER
Clerk
SAM KEIRSEY and KAY ORNDORF,
Plaintiff-Counter Defendant-
Appellant,
v.
DREW DIAMOND, BOBBY BUSBY,
and CHARLES JACKSON,
No. 96-5155
Defendants-Appellees, (D.C. No. 92-C-345-H)
(N. Dist. Okla.)
CAROLYN KUSLER,
Defendant-Counter Claimant-
Appellee,
CITY OF TULSA,
Defendant-Cross Claim
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, EBEL, and BRISCOE.
*
This order and judgment is not binding precedent, except under the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.
Tulsa Police Officers Sam Keirsey and Kay Orndorff brought this action
under 42 U.S.C. § 1983 against the City of Tulsa, former Tulsa Police Chief Drew
Diamond, and Tulsa Police Officers Carolyn Kusler, Charles Jackson, and Bobby
Busby. Plaintiffs assert their First Amendment rights were violated when
defendants retaliated against them for speaking out about alleged improprieties in
the Police Department’s operation of the Tulsa Youth Ranch. The district court
concluded that the individual defendants were entitled to summary judgment
because plaintiffs’ allegations were conclusory and nonspecific. The court also
entered summary judgment for the City of Tulsa, holding that none of the alleged
improper conduct was taken by City policy-makers. Plaintiffs appeal and we
affirm.
The events leading up to this suit began when responsibility for the
operation of the Youth Ranch was transferred from a uniformed division to Tulsa
Police headquarters. Defendant Jackson was responsible for the Ranch before the
transfer, and defendant Kusler, who was division commander at headquarters, was
responsible after the change. Plaintiff Orndorff was assigned to meet with the
outgoing personnel to prepare for a smooth transition. The Ranch had received a
federal grant to fund sports programs for underprivileged children, and Plaintiff
Keirsey was in charge of overseeing grant operations. Both plaintiffs reported to
Defendant Kusler.
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During the transition, plaintiffs received information which led them to
believe that Ranch funds and equipment had been misappropriated and/or stolen,
and that other improper activities had taken place there. Plaintiffs reported their
suspicions to Kusler. Meetings were held, a City Councilor began to ask
questions about the situation, and ultimately the District Attorney began an
investigation. Plaintiffs were directed by the Mayor’s office to cooperate with the
investigation and they did so, telling the District Attorney’s office all they knew
and had heard about improprieties that had allegedly taken place at the Ranch.
Plaintiffs brought this suit alleging that as a result of their cooperation and
the information they gave during the investigation, defendants subjected them to
harassment, intimidation, and retaliation. “It is now axiomatic that a
governmental entity cannot condition employment ‘on a basis that infringes the
employee’s constitutionally protected interest in freedom of expression.’” Schalk
v. Gallemore, 906 F.2d 491, 494 (10th Cir 1990) (quoting Connick v. Myers, 461
U.S. 138, 142 (1983)). By the time the events at issue here took place, we had
rejected the position that “only adverse employment decisions, such as
termination, suspension, or transfer, in retaliation for constitutionally protected
conduct are illegal,” holding instead that “[a]ctions short of an actual or
constructive employment decision can in certain circumstances violate the First
Amendment.” Morfin v. Albuquerque Pub. Schs., 906 F.2d 1434, 1437 n.3 (10th
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Cir. 1990) (emphasis added). We expressly did not delineate a precise standard in
Morfin, see id., and we have not had an occasion to do so in subsequent cases.
Nonetheless, the cases we cited in Morfin demonstrate that the actions
complained of must be sufficiently substantial to present an actual or potential
danger that an employee’s speech will be chilled. See, e.g., Pieczynski v. Duffy,
875 F.2d 1331, 1333 (7th Cir. 1989) (harassment not constitutional violation
when so trivial “a person of ordinary firmness would not be deterred” from
engaging in protected activity); Allen v. Scribner, 812 F.2d 426, 434 n.17 (9th
Cir. 1987) (harassment not constitutional violation when court can say as matter
of law that exercise of First Amendment rights not deterred).
When a defendant asserts the defense of qualified immunity, the plaintiff
must come forward with evidence of sufficient particularity demonstrating that
the defendant’s conduct violated clearly established law. Langley v. Adams
County, 987 F.2d 1473, 1476 (10th Cir. 1993). “Although we view the evidence
and draw all inferences in the light most favorable to the party opposing summary
judgment, that party ‘must identify sufficient evidence which would require
submission of the case to a jury.’” Id. (quoting Mares v. ConAgra Poultry Co.,
971 F.2d 492, 494 (10th Cir. 1992)). “Supporting and opposing affidavits shall
be made on personal knowledge, shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant is competent to testify to
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the matters therein.” Fed. R. Civ. P. 56(e).
Plaintiffs’ failure to comply with the above requirements for opposing a
grant of a grant of summary judgment seriously impedes our ability to address
their claims on the merits. We have repeatedly cautioned that
the nonmovant must do more than refer to allegations of counsel
contained in a brief to withstand summary judgment. Rather,
sufficient evidence (pertinent to the material issue) must be
identified by reference to an affidavit, a deposition transcript or a
specific exhibit incorporated therein. In the absence of such specific
reference, we will not search the record in an effort to determine
whether there exists dormant evidence which might require
submission of the case to a jury. Such an appellate supplementation
of the nonmovant’s presentation would not be fair to either the
movant or the district court.
Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024-25 (10th Cir.
1992) (citations omitted). Moreover, “[i]t is well settled in this circuit that we
can consider only admissible evidence in reviewing an order granting summary
judgment. Hearsay testimony cannot be considered because ‘[a] third party’s
description of [a witness’] supposed testimony is not suitable grist for the
summary judgment mill.’” Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541
(10th Cir. 1995) (citations omitted). As we discuss briefly below, plaintiffs here
have frequently failed to support their arguments with any record citations
whatsoever, and many of the citations they do provide are to hearsay evidence
that we will not consider.
We first address plaintiffs’ claims against the individual defendants.
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Plaintiffs concede that they have never received a cut in pay, or been demoted or
suspended. They both nevertheless argue that they were given undesirable
transfers and less favorable performance reviews in retaliation for their protected
activity. Specifically, Kiersey complains about his reassignment by Chief Palmer
to the midnight shift under Major Bob chance and his subsequent lower
performance evaluation. Orndorff apparently complains about her transfer by
Chief Dave Bean and her June 1, 1993 evaluation by Lieutenant Jim Green.
Significantly, however, the persons responsible for the transfers and the reviews
are not named defendants in this lawsuit. Plaintiffs have offered nothing but
hearsay and speculation to establish the retaliatory nature of these actions or to tie
them to defendants. Accordingly, these claims do not defeat the grant of
summary judgment.
Plaintiffs also assert the following laundry list of incidents which they
contend constitute actionable harassment under Morfin.
1. Kusler filed a sexual harassment complaint against Keirsey;
2. Kusler altered a tape recording regarding a meeting with
Keirsey and Orndorff;
3. Charles Jackson attempted to have Keirsey and Orndorff lie
to [a city councilman] at a meeting;
4. Kusler made demands on Keirsey and Orndorff that had
never been made before (i.e.
reporting everything to her);
5. Diamond directed Plaintiff Orndorff to forget all that
happened;
6. Diamond, Busby and Kusler intimidated Keirsey and
Orndorff in regard to giving information to the Tulsa County
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District Attorney’s Office;
7. Mayor Pro Temp Susan Savage tried to dissuade Keirsey’s
and Orndorff’s meeting
with [the city councilman];
8. Busby made threats against Keirsey and Orndorff;
9. Diamond attempted to transfer Keirsey and Orndorff;
10. Diamond threatened that Keirsey and Orndorff would be
“dealt with;”
11. Kusler lied to the Tulsa World [newspaper] regarding
Keirsey;
12. Plaintiffs’ lowered performance evaluations.
Aplts. App. at 72. 1
Many of the above items cannot be characterized as harassment, many are
unsupported, and others are supported by nothing more than hearsay. Indeed, the
list as it appears in district court pleadings is unaccompanied by any citations to
the record whatsoever. Moreover, even if the allegations were properly
accompanied by admissible evidence, it is undisputed that the conduct did not
chill the exercise of plaintiffs’ speech. See DeGuiseppe v. Village of Bellwood,
68 F.3d 187, 191 (7th Cir. 1995) (“the complained-of action must be sufficiently
adverse to present an actual or potential danger that the speech of employees will
be chilled”). Accordingly, in view of our discussion in Morfin indicating that
harassment alone does not rise to a constitutional violation unless it presents a
1
As to item number one, the record reflects that Officer Kusler filed her
complaint against another officer, not plaintiff Keirsey. Her complaint against
Keirsey was that he did not properly process the complaint, which others with
authority determined was not actionable. As to item number eight, plaintiffs
conceded in district court that they had no evidence to support the allegation.
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substantial danger of chilling protected speech, individual defendants were
entitled to summary judgment.
Plaintiffs also sued the City of Tulsa, asserting that it is liable for the
unconstitutional acts of former Police Chief Diamond. Having failed to establish
their claim against defendant Diamond individually through admissible evidence,
plaintiffs claim against the City based on the same conduct fails as well. See
Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993).
Moreover, we agree with the district court that the City is not liable
because the Police Chief is not the final policy-maker for the City. The Tulsa
Municipal Ordinances provide that the Police Department “shall be under the
control and authority of the Mayor who shall approve rules and regulations
defining the authority, specifying the duties, and governing the conduct of all
police officers and employees of the Department.” Tulsa, Okla., Municipal
Ordinances tit. 29, sec. 101. The Ordinances further provide that the Chief is
accountable to the Mayor for the promulgation of all orders given to the
Department, and requires the Chief to confer with and be advised by the Mayor on
all important matters pertaining to the Department. Id. sec. 106. 2 This case is
2
In addition to relying on the conduct of former Chief Diamond to support
their claim against the City, plaintiffs also assert that the City is liable on the
basis of Mayor Pro Tem Susan Savage’s alleged attempt to dissuade them from
meeting with the city councilman. This alleged conduct cannot be characterized
as harassment, is unsupported by any citation to admissible evidence, and is too
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thus distinguishable from Flanagan v. Munger, 890 F.2d 1557 (10th Cir. 1989),
upon which plaintiffs rely, because there the City conceded that the Chief had
final authority to take the actions complained of and the pertinent municipal code
in fact vested final authority in the Chief. Id. at 1568.
We AFFIRM the grant of summary judgment against all defendants.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
trivial to rise to a constitutional violation in any event.
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