Worrell v. Henry

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 26 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

JAMES A. WORRELL,

Plaintiff-Appellant,

v.
No. 98-6219
GARY L. HENRY, in his official
capacity as District Attorney of the
Twentieth Judicial District for the
State of Oklahoma, and in his
individual capacity; WILLIAM
FLOYD "DUB" TURNER, in his
individual capacity; FRANK
KEATING, in his official capacity as
Governer of the State of Oklahoma;
ELAINE DODD, in her individual
capacity; and MALCOLM ATWOOD,
in his individual capacity,

Defendants-Appellees

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 96-CV-718-C)

D. Gregory Bledsoe, Tulsa, Oklahoma, for Plaintiff-Appellant.

Lisa Tipping Davis, Assistant Attorney General, State of Oklahoma, for
Defendant-Appellee Henry.
David Lee, Lee & Gooch, Oklahoma City, Oklahoma, (Scott Rowland, Oklahoma
State Bureau of Narcotics and Dangerous Drugs, Oklahoma City, Oklahoma, with
him on the brief) for Defendants-Appellees Turner, Dodd, and Atwood.

Before HENRY and MURPHY , Circuit Judges, and KIMBALL, District Judge. *

HENRY , Circuit Judge

James Worrell appeals the district court’s grant of summary judgment

against him and in favor of the defendants Gary Henry, William

Floyd “Dub” Turner, Elaine Dodd, and Malcom Atwood on his claim alleging a

violation of his First Amendment rights pursuant to 42 U.S.C. § 1983.

In the district court proceedings, Mr. Worrell challenged Mr. Henry’s withdrawal

of an offer of employment to serve as the coordinator of a drug task force,

administered by Mr. Henry in his capacity as District Attorney for the Twentieth

District of Oklahoma. According to Mr. Worrell, Mr. Henry withdrew the offer

because of information he received from the defendant Mr. Turner, an agent for

the Oklahoma Bureau of Narcotics and Dangerous Drugs (OBNDD): Mr. Turner

informed Mr. Henry that Mr. Worrell had testified as an expert witness for the

defendant in a murder trial nine years earlier. Mr. Worrell maintained that the

*
The Honorable Dale A. Kimball, United States District Judge for the
District of Utah, sitting by designation.

2
withdrawal of the job offer constituted retaliation for activity protected by the

First Amendment—truthful testimony in the murder trial.

Applying the balancing test first set forth by the Supreme Court in

Pickering v. Board of Education , 391 U.S. 563 (1968), the district court rejected

Mr. Worrell’s argument. Noting that Mr. Henry had received information from

Mr. Turner that law enforcement officers did not trust Mr. Worrell, the court

concluded that Mr. Worrell’s interest in testifying was outweighed by the

defendants’ interest in administering an effective drug task force.

For the reasons set forth below, we agree with the district court’s resolution

of the Pickering balancing test with regard to Mr. Henry. However, because the

Pickering balancing test has not been applied to individuals who are neither the

plaintiff’s employer nor parties to a contract with him, we conclude that the

district court erred in analyzing Mr. Worrell’s claims against Mr. Turner, Ms.

Dodd, and Mr. Atwood. As to those claims, we vacate the district court’s grant of

summary judgment and remand for further proceedings consistent with this

opinion.

I. BACKGROUND

In January 1986, attorneys representing the defendant in a capital murder

case pending in the District Court of Woodward, Oklahoma asked Mr. Worrell to

3
testify at trial. 1
At the time, Mr. Worrell was employed as a private investigator,

but he had previously worked as an FBI agent. The lawyers informed him that the

case involved the killing of an undercover ONBDD agent who had tried to make

an arrest. They explained that they were exploring a theory of self-defense: that

the murdered ONBDD agent had attempted to arrest the defendant without

displaying any indication of his official authority and that, as a result, the

defendant could have reasonably believed that the agent was attempting to rob

him.

Mr. Worrell agreed to testify as a paid expert. On January 30, 1986, he

gave the following testimony on direct examination by the defendant’s attorney:

Q: As to the undercover arrest itself, are [sic] there any
type of standard operating procedure, or basic fundamental
course that is taught the officer as to how he is to go about
identifying himself under those circumstances?

A: Yes. Whoever is going to make the apprehension must
have some form of identification to show that they are a
law enforcement officer. They must either wear their
badge, or they must be in uniform or they must have a
jacket. In fact, the FBI have big black armbands with
white letters on them in addition to their badge. But, they
must have some identification so that the criminal will
realize that you are a constituted authority when you make
the arrest.

....

1
The case was State v. Ellis , No. CRF-85-59, District Court of
Woodward County, Oklahoma. See Aplt’s App. at 313.

4
 Q: Why would it be necessary for an undercover officer to
specifically show identification in addition to just saying
that he is an officer?

A: Because the criminal doesn’t know unless he sees a
symbol of authority. Anybody could hollar [sic] the words
[“]police,[”] and without the symbol of authority, the
criminal can only assume that somebody is fixing to rip
him off, take him down, and he doesn’t know who that is.

Aplt’s App. at 242, 245.

The prosecution offered testimony from a supervising special FBI agent to

rebut Mr. Worrell’s testimony. The FBI agent stated that proper arrest procedure

required the law enforcement officer to identify himself as an agent but that he

did not usually display a badge or other credentials. After hearing all the

evidence, the jury convicted the defendant. However, it rejected the prosecution’s

request for the death penalty and imposed a sentence of life imprisonment.

Mr. Worrell’s testimony in the Ellis case generated considerable anger and

resentment among ONBDD agents. Some agents speculated that it was Mr.

Worrell’s testimony that kept the defendant from receiving the death penalty.

Although Mr. Turner had not attended the trial and had not reviewed a transcript

of Mr. Worrell’s testimony, he heard from other agents that Mr. Worrell had

testified that “the investigation was basically botched from the beginning . . . and

. . . because of . . . the poor caliber of the investigators, this is what led to [the

ONBDD agent’s] murder.” Id. at 111.

5
 In 1994, Mr. Henry was elected District Attorney for the Twentieth Judicial

District of Oklahoma. Mr. Worrell applied for an investigative position with Mr.

Henry’s office, and some time between January and March 1995, Mr. Henry

offered Mr. Worrell the position of coordinator of the District Attorney’s drug

task force. Mr. Henry wanted the task force to handle informants and conduct

undercover drug investigations. Mr. Henry informed Mr. Worrell that he had

applied for a grant for the task force from the Violent Crime Grant Board and that

the job offer was conditioned on the award of the grant. Mr. Worrell accepted the

offer, and Mr. Henry submitted Mr. Worrell’s résumé along with the grant

application seeking funding for the task force.

Mr. Henry also discussed the drug task force with the defendant Mr.

Turner, who was the ONBDD agent in charge of the Ardmore district. In their

initial discussions, Mr. Turner offered the ONBDD’s assistance to task force

personnel. He thought that the task force was a “[t]remendous idea,” id. at 115,

and told Mr. Henry that ONBDD agents would assist in training task force

employees and getting them admitted into educational programs for law

enforcement agents.

Mr. Turner’s view of the task force soon changed. Although he had heard

that Mr. Henry had offered the coordinator position to Mr. Worrell, he had not

initially recognized Mr. Worrell’s name. In May or June of 1995, an FBI agent

6
informed Mr. Turner that Mr. Worrell was the agent who had testified for the

defense in the Ellis case. Mr. Turner contacted his supervisors, the defendant

Elaine Dodd (the ONBDD Director) and the defendant Malcom Atwood (the

ONBDD agent-in-charge). He told them that he intended to withdraw his

previous offers of ONBDD assistance if Mr. Henry hired Mr. Worrell. He

explained that he believed that Mr. Worrell had been deceitful, that he did not

trust him, and that he would not work with him. Ms. Dodd and Mr. Atwood

informed Mr. Turner that he would not be required to work with someone whom

he did not trust, and they agreed that he could talk to Mr. Henry about Mr.

Worrell.

After speaking with Ms. Dodd and Mr. Atwood, Mr. Turner telephoned Mr.

Henry. Mr. Henry summarized their conversation as follows:

[H]e had found out that Mr. Worrell was one and the same
individual who testified in a murder trial in Woodward
County, I believe, regarding the murder of an OBN[DD]
agent . . . , that he felt like Mr. Worrell had whored
himself out to the defense and that he did not trust him and
that he was agent in charge and that he was not going to
work with any agency or anybody that he did not trust and
he would not put his officers in a position of working with
anyone he didn’t trust and therefore, all offers, . . . were
revoked if Mr. Worrell went to work for me.

Id. at 146.

After conferring with a colleague at the District Attorney’s Council and an

FBI agent, Mr. Henry decided to rescind the job offer he had made to Mr.

7
Worrell. In explaining his decision, he told Mr. Worrell that he was concerned

not with the testimony in the Ellis case but rather with the fact that the ONBDD

“was not going to cooperate or coordinate with the Task Force and that [he] felt

that cooperation and coordination was essential.” Id. at 149.

In deposition testimony, Mr. Henry further explained:

[T]he grant that was awarded was only $90,000, about half
of what we asked . . . . I would be able to hire two agents
and help fund possibly a third. But without the
cooperation, coordination, assistance, and training,
intelligence from the Bureau of Narcotics, I didn’t feel it
would be a viable task force.

....

The major brunt of our drug program in the 20th
District Attorney’s District is confined to the Ardmore
area. When you’re doing a Task Force, you don’t want to
hire as agents police officers that everybody in the whole
part of the state knows are cops and then put them in the
field doing undercover work. You need to bring in people
who are new and outsiders.
Bringing in individuals such as Mr. Worrell and
others who came in and had no knowledge of the
operations, no knowledge of the people, no knowledge of
the drug community, who would then be thrown out there
without any kind of cooperation or coordination from the
one agency that specializes in that operation would be an
impotent organization and would not be able to function.

I was saddled with and was vested with the
responsibility of tens and thousands of dollars of federal
grant money that I wanted put into a viable operation and
I was not going to have it put into something where you
have two agents sitting in an office and waiting and hoping
for the phone to ring, which is what would have been the

8
 situation had Mr. Worrell been there without the
cooperation of these agencies, and I was not going to do
that.

Id. at 148.

In March 1997, Mr. Worrell filed the instant action. He named Mr. Henry,

Mr. Turner, Ms. Dodd, and Mr. Atwood as defendants and alleged that the

recission of the offer to serve as coordinator of the drug task force violated his

right to free speech under the First Amendment. He also asserted state law claims

for intentional interference with contractual relations and slander.

After conducting discovery, the defendants moved for summary judgment.

In March 1998, the district court granted the defendants’ motion on Mr. Worrell’s

First Amendment claim and dismissed his state law claims without prejudice.

The court began its analysis by assuming that Mr. Henry’s withdrawal of

the job offer was based in part on Mr. Worrell’s testimony in the Ellis case. It

then applied the balancing test first set forth in Pickering v. Board of Education ,

391 U.S. 563 (1968). The court cited evidence that Mr. Worrell’s “presence

would have had a detrimental impact on the working relationship between

OBN[DD] and the task force” and that Mr. Henry believed that “without

OBN[DD] cooperation, the drug task force would not be able to function.” Id. at

325. In light of this evidence, it concluded that “[Mr. Worrell’s] interest in

exercising his first amendment rights nine years earlier is far outweighed by

9
Henry’s interest in providing the citizens of the Twentieth District with an

effective drug task force.” Id. at 326. Thus, Mr. Worrell had failed to present a

viable First Amendment claim.

II. DISCUSSION

On appeal, Mr. Worrell first challenges the district court’s application of

the Pickering balancing to the defendant Mr. Henry. He maintains that the district

court erred in finding Mr. Henry’s interests in administering an effective drug

task force outweighed Mr. Worrell’s interest in providing truthful testimony.

Next, Mr. Worrell challenges the district court’s application of the Pickering

balancing to the ONBDD defendants (Mr. Turner and his two supervisors, Ms.

Dodd and Mr. Atwood). As to those defendants, Mr. Worrell argues that the fact

that they were not his prospective employer and were not parties to a contract

with him renders the Pickering approach inapplicable. Finally, in the event that

we reverse the district court grant of summary judgment to the defendants, Mr.

Worrell urges us to reject the defendants’ contention that they are entitled to

qualified immunity, even though the district court did not consider that question.

He maintains that the interests of judicial economy support the resolution of the

qualified immunity issue in this appeal.

10
 We engage in de novo review of the district court’s grant of summary

judgment to the defendants, applying the same standard as the district court

pursuant to Fed. R. Civ. P. 56. McKnight v. Kimberly Clark Corp. , 149 F.3d

1125, 1128 (10th Cir.1998). Summary judgment is warranted if there is no

genuine issue as to any material fact and the moving party is entitled to a

judgment as a matter of law. See Fed. R. Civ. P. 56(c); Williams v. Widnall , 79

F.3d 1003, 1005 (10th Cir. 1996). We examine the record to determine whether

any genuine issue of material fact is in dispute, construing the factual record and

reasonable inferences therefrom in the light most favorable to the non-moving

party. See Curtis v. Oklahoma City Pub. Schs. Bd. of Educ. , 147 F.3d 1200, 1214

(10th Cir.1998). If there is no dispute concerning a genuine issue of material

fact, we determine whether the district court correctly applied the substantive law.

Peck v. Horrocks Eng’rs, Inc ., 106 F.3d 949, 951 (10th Cir. 1997).

We begin our analysis by reviewing the protections provided to witnesses

who testify at trial. We then apply the Pickering balancing to the defendant Mr.

Henry. Next, we consider whether the Pickering approach should be applied to

defendants (like Mr. Turner, Ms. Dodd, and Mr. Atwood) who are not the

plaintiff’s employer. Finally, we address the question of qualified immunity.

A. Protection of Witnesses’ Testimony

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 In order to encourage truthful and uninhibited testimony, the law has long

afforded certain protections to witnesses. Under the common law, witnesses were

immune from suits for damages for testimony in judicial proceedings. See

Briscoe v. LaHue , 460 U.S. 325, 331 (1983). The grant of immunity sought to

forestall two kinds of self-censorship. First, absent immunity, witnesses might be

reluctant to come forward. See id. at 333 (citing Henderson v. Broomhead , 157

Eng. Rep. 964, 968 (Ex. 1859)). Second, witnesses might distort their testimony

out of fear of subsequent liability. The grant of immunity thus promoted full

disclosure of the relevant facts:

Even within the constraints of the witness’s oath there may
be various ways to give an account or to state an opinion.
These alternatives may be more or less detailed and may
differ in emphasis and certainty. A witness who knows
that he might be forced to defend a subsequent lawsuit,
and perhaps to pay damages, might be inclined to shade his
testimony in favor of the potential plaintiff, to magnify
uncertainties, and thus to deprive the finder of fact of
candid, objective, and undistorted evidence. But the truth
finding process is better served if the witness’ testimony
is submitted to the crucible of the judicial process so that
the factfinder may consider it, after cross- examination,
together with the other evidence in the case to determine
where the truth lies.

Briscoe , 460 U.S. at 333-34 (internal citations and quotations omitted).

Considering the common law tradition and Congressional intent, the Supreme

Court has extended witness immunity to § 1983 actions. See id. at 345-46

(noting the “indispensable” role that witnesses play in the adjudicatory process).

12
 In the last few decades, federal courts have afforded additional protection

to witnesses who are employed by the government, concluding that truthful

testimony is protected by the First Amendment and that a government employee

may not be fired or subjected to other adverse action as a result of such testimony.

See, e.g. , Melton v. City Oklahoma City , 879 F.2d 706, 714 (10th Cir. 1989),

vacated on other grounds , 928 F.2d 920 (10th Cir. 1991) (en banc)); see also Pro

v. Donatucci , 81 F.3d 1283, 1291 (3d Cir. 1996); Smith v. Hightower , 693 F.2d

359, 368 (5th Cir. 1982). Those decisions are particular applications of the

“modern ‘unconstitutional conditions doctrine,’ [which] holds that the

government may not deny a benefit to a person on a basis that infringes his

constitutionally protected freedom of speech even if he has no entitlement to that

benefit.” Board of County Comm’rs v. Umbehr , 518 U.S. 668, 674 (1996)

(internal citations and quotations omitted); see also Andersen v. McCotter , 100

F.3d 723, 727 (10th Cir. 1996) (explaining the unconstitutional conditions

doctrine and noting that “the Court has recognized a variety of benefits which

cannot be denied solely because of the exercise of constitutional rights,”

including the offer of a government job).

The Fifth Circuit’s decision in Johnston v. Harris County Flood Control

Dist. , 869 F.2d 1565 (5th Cir. 1989), provides an overview of the reasons for

protecting government employees’ testimony. Absent such protection, employers

13
seeking to silence truthful testimony could present employees with a difficult

choice. “Employees could either testify truthfully and lose their jobs or could lie

to the tribunal and protect their job security.” Id. at 1578. Either choice would

come at too high a price: “Those able to risk job security would suffer state-

sponsored retaliation for speaking the truth before a body entrusted with the task

of discovering the truth.” Id. On the other hand, “[t]hose unwilling or unable to

risk unemployment would scuttle our efforts to arrive at the truth.” Id. Affording

constitutional protection to the truthful testimony of public employees protects

both employees’ interest in free expression and the judicial system’s interest in

arriving at the truth. Id. ; see also Smith , 693 F.2d at 368 (concluding that the

“[F]irst [A]mendment protects the right to testify truthfully at trial” and that such

protection is also supported by “the right of a defendant at trial to compulsory

process and the goal of our criminal justice system to arrive at the truth”).

Nevertheless, First Amendment protection of public employees’ testimony

is not absolute. There are instances in which government entities’ interests as

employers outweigh employees’ interests in free expression and the policy of

encouraging truthful and uninhibited testimony. See Waters v. Churchill , 511

U.S. 661, 674-75 (1994) (plurality opinion) (“When [an employee] . . . begins to

do or say things that detract from the agency’s effective operation, the

government must have some power to restrain [him].”); Tedder v. Norman , 167

14
F.3d 1213, 1215 (8th Cir. 1999) (concluding that employer’s interest in avoiding

disruption in the workplace outweighed employee’s interest in giving voluntary

testimony); Green v. Philadelphia Housing Auth. , 105 F.3d 882, 887-89 (3d Cir.

1997) (same). A public employee’s testimony may impair discipline by

supervisors or harmony among coworkers; it may undermine close working

relationships based on loyalty and confidence; it may impede the performance of

an employee’s duties or the regular operations of the enterprise. See Rankin v.

McPherson , 483 U.S. 378, 388 (1987); Lytle v. City of Haysville , 138 F.3d 857,

863-64 (10th Cir. 1998).

In order to assess these various concerns, courts undertake a four-part

inquiry. See Lytle , 138 F.3d at 863; see also Connick v. Myers , 461 U.S. 138, 142

(1983). First, one considers whether the speech in question addresses a matter of

public concern. See Connick , 461 U.S. at 145-49. Only matters of public concern,

“those of interest to the community, whether for social, political, or other

reasons,” Lytle , 138 F.3d at 863, are protected by the First Amendment in this

context. Second, one considers the employee’s interest in freedom of expression

and the “government employer’s interest in regulating the speech” of employees in

order to maintain an efficient workplace. Id. ; see Pickering , 391 U.S. at 568

(1968). Employee speech is protected only if the employee’s interest in free

expression outweighs the employer’s interest in restricting the speech. See Lytle ,

15
138 F.3d at 863. This weighing of interests is known as “the Pickering

balancing.” Third, if the speech is protected, the employee must show that the

speech was “a substantial or motivating factor” in the challenged governmental

action. Id. ; see Gardetto v. Mason , 100 F.3d 803, 811 (10th Cir. 1996). Fourth, if

the employee meets this burden, the employer must be given the opportunity to

show that it would have taken the same action against the employee even in the

absence of protected speech. See Gardetto , 100 F.3d at 811; (citing Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 287 (1977)).

In this case, the parties agree that Mr. Worrell’s testimony, which concerned

proper arrest procedures, addressed a matter of public concern. See Lytle , 138

F.3d at 863 (concluding that testimony about proper police procedures involves a

matter of public concern). Moreover, because the district court concluded that Mr.

Worrell’s testimony was not protected speech, it did not reach the third or fourth

parts of the inquiry. Accordingly, we focus on the second part of the inquiry—the

Pickering balancing. We begin with a review of our precedent concerning First

Amendment retaliation claims involving the testimony of law enforcement agents

and then compare it to decisions in other circuits.

In Melton v. City of Oklahoma City , 879 F.2d at 714-15, we applied the

Pickering analysis to a police officer’s claim that he had been wrongfully

discharged for testifying on behalf of a judge who was the defendant in a criminal

16
case. We acknowledged that, if the testifying officer’s colleagues disagreed with

him as to the propriety of his testimony, then the officer’s testimony might cause

disharmony in the workplace. The testimony might also damage close working

relationships depending upon loyalty and confidence. However, we added that

“truthful trial testimony is unlikely to impair discipline by immediate superiors,

interfere with the regular operation of the enterprise or impede the officer’s

performance of his daily duties.” Id. at 714. Significantly, we found the police

officer’s interest in testifying at trial “compelling.” Id. at 715. Accordingly, “any

disruption or impairment of the enterprise would have to be extreme in order to

justify preventing trial testimony.” Id. (emphasis added). Because the

municipality offered no evidence that the testimony affected the operations of the

department, we concluded that the officer’s First Amendment interest in testifying

“easily outweigh[ed]” the municipality’s interest in preserving the efficiency and

effectiveness of its police department. Id.

In somewhat similar circumstances, other circuits have resolved the

Pickering balancing differently. For example, in Green , 105 F.3d at 885, the

Third Circuit rejected the plaintiff police officer’s First Amendment challenge to

his transfer out of a drug enforcement task force because he had agreed to testify

as a character witness at a bail hearing for the son of a friend. The Third Circuit

concluded that the police officer’s interest in testifying was entitled to less weight

17
because he had appeared voluntarily. In contrast, the court characterized the

interests of the police department as “very significant.” Green , 105 F.3d at 888.

“They include successfully fighting drugs and crime, protecting the safety of its

officers and other members of the community, fostering trust and confidence

among its officers and between its officers and other law enforcement drug units,

and protecting the Housing Authority Police Department’s reputation.” Id. The

court cited testimony that the police officer’s voluntary appearance had impaired

his ability to work with his fellow officers. Because of the kind of work

performed by the drug task force, “any perceived breach of trust and security

could reasonably constitute a threat to the [task force], its officers, and its

relationships with other police drug units and the community it serves.” Id. at

889. The court concluded that the risk of injury to the police department

outweighed the officer’s interest in providing voluntary testimony and that, as a

result, his transfer out of the task force did not violate the First Amendment.

Similarly, in Tedder , 167 F.3d at 1215, the Eighth Circuit rejected a First

Amendment challenge to the demotion of a deputy director of a state law

enforcement training agency who had given voluntary deposition testimony that a

deputy sheriff had used excessive force. The court resolved the Pickering

balancing in favor of the employer, reasoning that the voluntary testimony

substantially undermined the relationship between the plaintiff and his supervisor,

18
that the supervisor reasonably believed that the testimony was provided in

violation of an agency policy, and that the testimony could disrupt the employer’s

relationships with the other law enforcement agencies. See id.

Melton , Green , and Tedder illustrate the case-specific nature of the

Pickering balancing as applied to public employees’ testimony. In stating that the

disruption of the workplace must be “extreme” in order to outweigh the

employee’s interest in giving truthful testimony, Melton imposes a somewhat

higher burden on employers than the decisions of other circuits.

B. The Pickering Balancing Applied to the Defendant Mr. Henry
(The Plaintiff’s Prospective Employer)

In this appeal, Mr. Worrell argues that the district court erred in assessing

the degree of disruption of the drug agency task force that would have resulted if

Mr. Henry had hired him. He therefore maintains that his testimony in the Ellis

case was protected by the First Amendment and that Mr. Henry improperly

withdrew his offer to serve as the coordinator of the drug task force.

Before assessing Mr. Worrell’s challenge to the district court’s Pickering

balancing, we must consider his status as a prospective employee. In his

appellate brief, Mr. Henry suggests that because Mr. Worrell was not ultimately

employed by him and because the subject testimony was given nine years earlier

(when Mr. Worrell was a private investigator), the case law concerning the First

19
Amendment rights of public employees is inapplicable. We are not persuaded by

this argument.

This circuit has applied the Pickering balancing to hiring decisions. See

Franklin v. Atkins , 562 F.2d 1188, 1190 (10th Cir. 1977) (“[T]he Regents need

give no reason for a refusal to hire, and in fact need have no reason at all.

However, it is equally obvious that they could not refuse to hire for a

constitutionally impermissible reason.”) (citation omitted). Other circuits have

taken the same approach. See Shahar v. Bowers , 114 F.3d 1097, 1102-03 (11th

Cir. 1997) (en banc) (applying Pickering balancing to government employer’s

withdrawal of a job offer); Hubbard v. EPA , 949 F.2d 453, 460 (D.C. Cir.1992)

(applying the Pickering balancing to a hiring decision and observing that

“[m]erely because an employer is hiring rather than firing , however, does not

justify unconstitutional action”).

These decisions are applicable here. When Mr. Henry decided to withdraw

his offer to Mr. Worrell, he acted as an employer responsible for the functioning

of the drug task force. Accordingly, we conclude that the Pickering balancing

provides the appropriate framework for assessing the parties’ interests and

determining whether Mr. Henry violated Mr. Worrell’s First Amendment rights.

Mr. Worrell’s challenge to the district court’s assessment of workplace

disruption under Pickering is based on a distinction between internal and external

20
operations. He maintains that the evidence submitted by the defendants

concerned only the disruption of the drug task force’s external operations—its

relationships with other law enforcement agencies. According to Mr. Worrell,

only the disruption of an agency’s internal operations may be considered in

conducting the Pickering balancing.

Mr. Worrell’s argument derives from our decision in Flanagan v. Munger ,

890 F.2d 1557 (10th Cir. 1989). In that case, we considered a police chief’s

reasons for prohibiting officers from renting sexually explicit films: “if members

of the public knew that officers were renting them, negative public feelings about

the distribution of sexually explicit films would erode the public’s respect and

confidence in the police department.” Flanagan , 890 F.2d at 1566. We noted that

the police department had failed to produce any evidence of actual or potential

disruption of the department’s internal operations—because of discipline

problems, disharmony, threats to working relationships, or problems with work

performance. See id. In that circumstance, we concluded that the disruption of

the department’s external operations that might result because members of the

public were offended could not justify the challenged disciplinary action against

the police officers.

Flanagan is distinguishable from this case. Here, Mr. Henry presented

evidence that the effective functioning of the drug task force depended upon “the

21
cooperation, coordination, assistance, training, [and] intelligence” of the ONBDD.

Aplt’s App. at 148. With the support of his supervisors, Mr. Turner informed Mr.

Henry that he intended to withdraw that cooperation if Mr. Worrell became the

coordinator. Mr. Worrell did not present any evidence to rebut Mr. Henry’s

contention that the task force would be jeopardized. This case thus contains the

very kind of evidence lacking in Flanagan .

Moreover, our prior decisions have acknowledged the appropriateness of

Mr. Henry’s concerns about Mr. Worrell’s relationships with other law

enforcement officers. In particular, we have recognized that personal loyalty and

confidence among employees are especially important in law enforcement. See

Lytle , 138 F.3d at 867; Moore v. City of Wynnewood , 57 F.3d 924, 934 (10th Cir.

1995); Wulf v. City of Wichita , 883 F.2d 842, 861 (10th Cir. 1989). These

concerns are heightened in smaller offices and departments, where relatively

minor disturbances in morale may create significant problems. Lytle , 138 F.3d at

867; Moore , 57 F.3d at 934. Mr. Henry explained that his staff was small and that

the presence of a coordinator with whom other officers would not work would

have rendered the task force ineffective.

We further note that the unusual and unfortunate circumstances of this case

heightened the disruption that might reasonably have resulted from the hiring of

Mr. Worrell. In the drug task force position, Mr. Worrell would have been

22
required to work closely with an agency (the ONBDD) that had employed the

murder victim in the Ellis case. Mr. Turner reported, “[T]here were many law

enforcement officers who greatly resented Mr. Worrell for what he did, and who

would have refused to work for him.” Aplt’s App. at 102. Although it may well

be, as Mr. Worrell suggests in his appellate brief, that these officers’ reactions to

Mr. Worrell represented a kind of displaced anger over the murder and the failure

of the prosecution to obtain a death sentence, see Aplt’s Br. at 11, Mr. Henry was

entitled to consider the fact that these officers would not cooperate with Mr.

Worrell in deciding whether to hire him.

Additionally, as Mr. Worrell’s prospective employer, Mr. Henry was not

obligated to wait for an actual breakdown in the functioning of the task force

before taking action. Instead, he was entitled to rely on reasonable predictions of

workplace disruption. See Jantzen v. Hawkins , 188 F.3d 1247, 1258 (10th Cir.

1999). Mr. Henry’s statement that the task force could not function effectively if

Mr. Worrell were hired is not the sort of “purely speculative allegation[]” that we

have condemned. See Moore , 57 F.3d at 934; see also Cragg v. City of

Osawatomie, Kan. , 143 F.3d 1343, 1347 (10th Cir. 1998). Instead, Mr. Henry’s

statement was based on a specific assessment of the cooperation needed in order

for the drug task force to serve its purpose.

In acknowledging Mr. Henry’s interest in administering an effective drug

23
task force, we do not minimize the importance of Mr. Worrell’s First Amendment

interest in providing testimony in the Ellis case. In reviewing the district court’s

grant of summary judgment, we must presume that testimony to be truthful. See

Curtis , 147 F.3d at 1214 (noting that the court must construe the record in the

light most favorable to the nonmoving party in reviewing the grant of a summary

judgment motion). Acting as a private citizen, Mr. Worrell had a First

Amendment right to express his opinion about proper arrest procedures. “[T]he

goal of our criminal justice system to arrive at the truth, ” Smith , 693 F.2d at 368,

and the interests of the parties in the case are furthered by witnesses who provide

testimony to assist the trier of fact. Mr. Worrell’s testimony is thus entitled to

“heightened” protection under our precedent. See Lytle 138 F.3d at 867; Melton ,

879 F.2d at 714. 2

2
Throughout this case, the defendants have noted that Mr. Worrell was
not subpoenaed to testify at the Ellis trial and that he appeared voluntarily as a
paid expert witness. They have argued that these facts indicate that Mr.
Worrell’s testimony is entitled to less protection under the Pickering inquiry.
Although the Eighth Circuit has considered the voluntariness of testimony as one
factor diminishing the employee’s First Amendment interests , see Tedder , 167
F.3d at 1215, we need not address the significance of that factor here. Mr. Henry
presented evidence concerning the extreme disruption of the task force that
would have resulted from the hiring of Mr. Worrell. As a result, Mr. Henry’s
interests as an employer outweigh Mr. Worrell’s interests in testifying in the Ellis
case— even without any diminishment of Mr. Worrell’s interests because he
testified as a paid expert.
We do note that the Fifth Circuit has acknowledged the significant First
Amendment protection afforded expert testimony in a case involving University
of Texas faculty members. See Hoover v. Morales , 164 F.3d 221, 226 (5th Cir.

24
 Nevertheless, those interests did not require Mr. Henry to hire a drug task

force coordinator who could not obtain the necessary cooperation from other law

enforcement officers. In these circumstances, Mr. Henry has established the

degree of extreme disruption, see Melton , 879 F.2d at 714, in law enforcement

operations necessary to outweigh Mr. Worrell’s interest in testifying at the Ellis

trial. We, therefore, conclude that the district court properly granted summary

judgment to Mr. Henry on Mr. Worrell’s First Amendment claim.

C.. The Nonemployer Defendants (Turner, Dodd, and Atwood)

Our conclusion that the district court properly applied the Pickering

balancing to the defendant Mr. Henry does not necessarily resolve Mr. Worrell’s

First Amendment claim against the defendants Mr. Turner, Ms. Dodd, and Mr.

Atwood. Those defendants all worked for the ONBDD, and, as they acknowledge

in their appellate brief, they were not Mr. Worrell’s prospective employer. They

1998). That case concerned policies barring state employees from acting as
consultants or witnesses on behalf of parties opposing the state in litigation.
Applying Pickering , the court held that an employee’s interest in giving
testimony outweighed the state’s interest as an employer. See id. (“In this case,
the State has not identified how the State’s interest in promoting efficiency of the
public services it performs through its employees will be adversely affected by
allowing state employees to serve as or be retained as expert witnesses or
consultants.”).

25
also had no direct contractual relationship with him.

1. Pickering and Nonemployer Defendants

As the parties observe, the Pickering balancing has been most frequently

applied to adverse actions taken by employers—individuals like Mr. Henry who

have the authority to make hiring and firing decisions and take other personnel

actions. See, e.g. , Rankin , 483 U.S. at 388-92 (applying balancing approach to

claim against constable for firing deputy constable); Pickering , 391 U.S. at 568-

73 (applying the balancing approach to claim against a School Board that

dismissed a teacher); Jantzen v. Hawkins , 188 F.3d at 1247, 1256-58 (10th Cir.

1999) (applying balancing approach to claim against a sheriff who fired a deputy);

Prager v. LaFaver , 180 F.3d 1185, 1191 (10th Cir.) (applying the balancing

appoach to claim against Secretary of a state Department of Revenue who fired a

senior tax attorney), cert. denied , 120 S. Ct. 404 (1999). Although courts have

occasionally applied the Pickering approach outside the employment setting, those

decisions have typically involved some kind of contractual relationship between

the plaintiff and the defendant. See, e.g , Umbehr , 518 U.S. at 673-86 (applying

the Pickering balancing to First Amendment claim by an independent contractor);

Copsey v. Swearingen 36 F.3d 1336, 1343-45 (5th Cir. 1994) (applying Pickering

to the termination of a vendor’s license); Davis v. West Community Hosp. , 755

26
 F.2d 455, 461-62 (5th Cir. 1985) (applying Pickering to hospital’s termination of

surgeon’s staff privileges).

As the plurality explained in Waters v. Churchill , it is the government’s

powers and responsibilities as an employer that warrant restrictions on speech that

would not be justified in other contexts:

The government’s interest in achieving its goals as
effectively and efficiently as possible is elevated from a
relatively subordinate interest when it acts as a sovereign
to a significant one when it acts as employer . The
government cannot restrict the speech of the public at
large just in the name of efficiency. But where the
government is employing someone for the very purpose of
effectively achieving its goals, such restrictions may well
be appropriate.

Waters , 511 U.S. at 675 (emphasis added). Similarly, when the government acts

as a contractor, “its interests as a public service provider, including its interest in

being free from intensive judicial supervision of its daily management functions,

are potentially implicated.” Umbehr , 518 U.S. at 678.

In this case, although Mr. Henry wanted the coordinator of the District

Attorney’s drug task force to work closely with ONBDD agents, the ONBDD did

not employ the coordinator. The authority to reestablish the task force, to seek

funding for it, to hire Mr. Worrell and then to rescind that offer of employment

belonged to Mr. Henry, not the ONBDD defendants. The evidence submitted by

the ONBDD defendants indicates that they, like Mr. Henry, were concerned about

27
providing effective law enforcement. However, the functioning of the drug task

force was Mr. Henry’s responsibility.

In instances in which a public employee alleges that an official outside the

employing agency has engaged in retaliatory conduct, there are serious risks in

applying the Pickering approach to define the scope of the employee’s First

Amendment rights. Our decision in Flanagan , 890 F.2d at 1566-67, suggests one

such risk. There, we referred to the Supreme Court’s rejection of “a heckler’s

veto” in First Amendment cases. Id. We concluded that a police department

could not justify disciplinary action against the plaintiff police officers simply

because some members of the public found the officers’ speech offensive and,

therefore, might not cooperate with the police department in the future. See id.

Applying Pickering to public officials outside the employing agency and

not parties to a contract with the plaintiff would raise the possibility of an

analogous kind of veto—a veto over personnel or contractual decisions. In

particular, acting with retaliatory intent, a third party upon whose cooperation the

employer depended could refuse to cooperate with the employer unless a

particular employee were fired, demoted, or transferred. By withholding

cooperation, the third party could effectively create the very workplace disruption

that, under the Pickering approach, could be used to justify the limitation of First

Amendment rights. Cf. Hughes v.Whitmer , 714 F.2d 1407, 1434 (8th Cir. 1983)

28
(McMillian, J., dissenting) (concluding that “[i]t would be anserine to permit the

government to discipline its employees because of disruption caused by the

government’s repressive reaction to the employee’s first amendment activities”).

Moreover, employer defendants like Mr. Henry and third party defendants

like the ONBDD agents may have very different relationships to the speech-

engendered workplace disruption that is often central to the Pickering analysis.

An employer defendant responsible for managing the workplace will often have

first-hand knowledge of the degree of disruption caused by the plaintiff’s speech

and its effects on the functioning of the agency. See Waters , 511 U.S. at 673

(noting the “substantial weight [afforded to] government employers’ reasonable

predictions of disruption”). Additionally, employer defendants will often be

unable to avoid that disruption. In contrast, a nonemployer defendant, although

able to cause disruption by refusing to cooperate with the plaintiff’s employer

unless certain personnel action is taken, may have little first-hand knowledge

about how the protected speech will affect the functioning of the employing

agency. Because a nonemployer defendant works for another agency, he or she

may be able to avoid the effects of the disruption caused by the withdrawal of

cooperation.

These differences are illustrated by the contrast in the evidence submitted

by Mr. Henry and the ONBDD defendants regarding the effects of hiring Mr.

29
Worrell for the drug task force position. As we have noted, Mr. Henry made a

compelling case concerning the disruptive effect that such a hiring decision would

have had on the drug task force. He pointed to the fact that his small and

underfunded drug task force depended on the cooperation of ONBDD agents and

thus could not function with a coordinator (like Mr. Worrell) with whom the

ONBDD agents would not work. In contrast, Mr. Turner (who was not personally

responsible for the operation of the task force) did not testify as to the effect that

Mr. Worrell would have had on the task force itself. Instead, Mr. Turner stated

that “I could not trust [Mr. Worrell] and did not and do not believe that my

agency could effectively carry out our mission of enforcing drug laws and

carrying out undercover operations if Mr. Worrell had been the Task Force

Director.” Aplt’s App. at 101. That statement is open to some debate. The

record indicates that the task force had not existed for several years before Mr.

Henry’s election as District Attorney, and there is no indication that the

ONBDD’s operations were adversely affected during that period. Moreover Mr.

Turner’s threat to withdraw the offer to cooperate with the task force appears to

be based on the assumption that the ONBDD could function independently of the

task force. Because the ONBDD defendants did not themselves employ Mr.

Worrell they were unable to present the persuasive evidence of workplace

disruption that Mr. Henry presented.

30
 In distinguishing third party agencies from employers and contractors, we

do not intend to discount the important interests noted by the ONBDD in this

case. We agree with the ONBDD defendants that their agency has a strong

interest in providing effective law enforcement. It is certainly conceivable that an

outside agency’s hiring of a person whom ONBDD agents did not trust could have

a detrimental effect on ONBDD operations. Nevertheless, under the Oklahoma

law outlined by the parties, none of the ONBDD defendants had any authority

over personnel decisions made by the District Attorney about the drug task force.

When Mr. Turner spoke with Mr. Henry about Mr. Worrell, he therefore acted

neither as an employer nor as a contractor. Moreover, as discussed below, there

is a factual dispute as to whether Mr. Turner acted with retaliatory intent. To

equate the ONBDD’s interests in these circumstances with the interests of

agencies that possess the authority of an employer or contracting party would

extend the Pickering approach beyond the limits that our precedent has

recognized. 3

3
We acknowledge that there may be instances in which the operations of a
third party agency are so intertwined with the operations of the employing agency
that the Pickering balancing should be applied. In other contexts, courts have
held that one company or agency may be held liable for another company or
agency’s wrongful conduct if the companies or agencies constitute a “single
employer.” See Knowlton v. Teltrust Phones, Inc. , 189 F.3d 1177, 1184 (10th
Cir. 1999) (applying the single-employer test); Lockard v. Pizza Hut, Inc. , 162
F.3d 1062, 1070 (10th Cir. 1998) (same). “The single-employer test rests on four
factors: (1) interrelation of operations; (2) centralized control over labor

31
 2. A Framework for Analyzing First Amendment Claims Against
Nonemployer Defendants

Accordingly, we conclude that an alternative to the Pickering balancing is

warranted when allegations of retaliatory conduct are directed at a defendant who

is not the plaintiff’s employer and when there is no contractual relationship

between them. The Eighth Circuit’s decision in Helvey v. City of Maplewood ,

154 F.3d 841 (8th Cir. 1998), suggests such an approach.

In Helvey , the plaintiff alleged that, after she testified about an incident

involving municipal police officers, the city manager demanded that she be fired

from her job as a bartender. According to the plaintiff, her employer complied

with the city manager’s request. Without applying the Pickering balancing, the

Eighth Circuit reversed the grant of summary judgment to the city manager,

relations; (3) common management; and (4) common ownership or financial
control.”
Knowlton , 189 F.3d at 1184. “[T]he heart of the inquiry is whether there is an
absence of an arms-length relationship among the companies.” Id. Although this
test has been most frequently applied to private companies, some courts have
adopted a similar approach with regard to government agencies. See E.E.O.C. v.
State of Illinois , 69 F.3d 167,171-72 (7th Cir.1995) (rejecting allegation that “the
State of Illinois so extensively controls the employment of teachers by the local
school districts that are their nominal employers so as to be the real . . .
employer”).
Here, the ONBDD defendants have not argued that the operations of
the District Attorney’s office and the ONBDD were so intertwined that they
should be considered a single employer. Accordingly, we need not decide
whether a “single employer” approach may be applied such that nonemployer
defendants may be afforded the benefit of the Pickering balancing.

32
concluding that there were controverted factual issues as to the city manager’s

intent. The court concluded, “[The plaintiff’s] allegation that [the city manager]

used his position of authority to cause [the employer] to fire her in retaliation for

the testimony she gave concerning the incident involving [the police officers]

stated a claim under section 1983.” Helvey , 154 F.3d at 844.

The Eighth Circuit’s approach in Helvey resembles one we have adopted in

assessing First Amendment retaliation claims against defendants other than the

plaintiff’s employer. We have stated that “[a]ny form of official retaliation for

exercising one’s freedom of speech, including prosecution, threatened

prosecution, bad faith investigation, and legal harassment, constitutes an

infringement of that freedom.” Lackey v. County of Bernalillo , No. 97-2265,

1999 WL 2461, at **3 (10th Cir. Jan. 5, 1999). We have required proof of the

following elements: (1) that the plaintiff “was engaged in constitutionally

protected activity”; (2) that the defendant’s actions caused the plaintiff “to suffer

an injury that would chill a person of ordinary firmness from continuing to engage

in that activity”; and (3) that the “defendant’s adverse action was substantially

motivated as a response to the plaintiff’s exercise of constitutionally protected

conduct.” Id. That approach has been followed by other circuits. See, e.g ,

Mendocino Environmental Center v. Mendocino County , 192 F.3d 1283, 1300-01

(9th Cir. 1999); Bloch v. Ribar , 156 F.3d 673, 678 (6th Cir. 1998).

33
 In our view, this approach, rather than the Pickering balancing, provides

the appropriate framework for assessing First Amendment claims against a

defendant who is neither an employer nor a party to a contract with the plaintiff.

By focusing on the protected activity, the effect of the defendant’s actions, and

the defendant’s intent, this approach reduces the risk of infringement of protected

speech that might result from application of the Pickerin g balancing. Under this

approach, a defendant who acts with retaliatory intent to cause an employer to

take adverse action will not be able to invoke workplace disruption caused by his

or her own conduct to justify the infringement of protected speech. On the other

hand, if the defendant’s intent in urging adverse action against the employee is

not retaliatory (e.g., if the defendant identifies legitimate problems with

employee’s qualifications or performance) or if the defendant’s conduct did not

cause the adverse action, then the defendant may successfully defend the

retaliation claim. Thus, under this approach, defendants such as the ONBDD

officials here may still invoke their interest in providing effective law

enforcement: if they can show that their motive in allegedly causing the

rescinding of the plaintiff’s job offer was to ensure that the ONBDD could

function effectively (rather than to retaliate against the plaintiff for his

testimony), then they may defeat the plaintiff’s First Amendment retaliation

claim.

34
 We now apply this framework to Mr. Worrell’s claims against the ONBDD

defendants. Viewing the record in the light most favorable to Mr. Worrell, we

first consider the claim against Mr. Turner and then proceed to the claims against

his two supervisors, Ms. Dodd and Mr. Atwood.

3. Claim Against the Defendant Turner

With regard to the claim against Mr. Turner, we conclude that a reasonable

factfinder could find for the plaintiff Mr. Worrell on the first element—that Mr.

Worrell was engaged in constitutionally protected activity. We have noted above

that truthful testimony is protected by the First Amendment. See Melton , 879 F.2d

at 714; Lytle , 138 F.3d at 864 n.2. Although Mr. Henry and the ONBDD

defendants dispute the truthfulness of Mr. Worrell’s testimony, we must afford

him the benefit of all favorable inferences. See Curtis , 147 F.3d at 1214. Thus, a

reasonable factfinder could conclude that, by testifying in the Ellis trial, Mr.

Worrell engaged in constitutionally protected activity.

As to the second element, a factfinder could conclude that Mr. Turner

caused Mr. Worrell “an injury that would chill a person of ordinary firmness from

continuing to engage in that activity.” Lackey , 1999 WL 2451, at **3. There is

evidence in the record supporting the conclusion that Mr. Turner caused the

withdrawal of a job offer by refusing to cooperate with the fledgling task force if

35
Mr. Henry hired Mr. Worrell. Moreover, a factfinder could conclude that Mr.

Turner’s statements that Mr. Worrell was not trusted by a significant section of

the law enforcement community could adversely affect Mr. Worrell’s ability to

obtain other positions. The loss of a job and the adverse impact on Mr. Worrell’s

career prospects are sufficient to establish the second element of the retaliation

claim against Mr. Turner. See Suarez Corp. Indus. v. McGraw , 202 F.3d 676, 686

(4th Cir. 2000) (concluding that decisions relating to promotion, transfer, and

hiring constitute sufficiently adverse actions to trigger First Amendment

protections).

As to the third element (whether “[Mr. Turner’s action] was substantially

motivated as a response to the plaintiff’s exercise of constitutionally protected

conduct,” see Lackey , 1999 WL 2451, at *3 ), there is evidence in the record from

which a reasonable factfinder could find retaliatory motive. In particular, Mr.

Turner informed Mr. Henry that, because of the Ellis testimony (which we must

here assume to be truthful and, therefore, protected by the First Amendment), he

would not cooperate with Mr. Worrell. Although the ONBDD defendants argue

that there were other reasons for the negative assessment of Mr. Worrell, there is

a factual question as to Mr. Turner’s motive.

We emphasize that Mr. Turner may be able to rebut Mr. Worrell’s

contentions at trial. For example, he may be able to convince the trier of fact that

36
Mr. Worrell’s testimony in the Ellis case was not truthful, that his actions were

motivated by a good faith belief that Mr. Worrell’s hiring would have an extreme

detrimental effect on ONBDD operations, or that his negative assessment of Mr.

Worrell was supported by factors other than the testimony. However, because the

record contains evidence from which a factfinder could conclude that Mr. Worrell

has established each of the three elements of his retaliation claim against Mr.

Turner, we conclude that the district court erred in granting summary judgment in

favor of Mr. Turner on Mr. Worrell’s First Amendment claim. 4

4. Claims against the Defendants Dodd and Atwood

With regard to the two other ONBDD defendants, the record is less

developed. The evidence presented by the parties on summary judgment indicates

that Mr. Turner informed Ms. Dodd and Mr. Atwood of his plan to talk to Mr.

Henry about the decision to hire Mr. Worrell and that the two supervisors

approved this course of action. In their affidavits, Ms. Dodd and Mr. Atwood

4
At first glance, it may seem counterintuitive that Mr. Worrell has a
viable First Amendment claim against the ONBDD defendants, but not against
Mr. Henry. However, a similar distinction between defendants is sometimes
made in the analogous tort action of intentional interference with contract. In
particular, an at-will employee who has no wrongful termination action against
his employer may still be able to assert an intentional interference claim against a
third party. See Haddle v. Garrison , 119 S. Ct. 489, 492 (1998).

37
explain that they told Mr. Turner that they believed that he should not be forced

to work with people whom he did not trust.

Under § 1983, a defendant may not be held liable under a theory of

respondeat superior. See Gagan v. Norton , 35 F.3d 1473, 1476 n.4 (10th Cir.

1994). Instead, to establish supervisory liability, a plaintiff must show that “an

affirmative link exists between the [constitutional] deprivation and either the

supervisor’s personal participation, his exercise of control or direction, or his

failure to supervise.” Meade v. Grubbs , 841 F.2d 1512, 1527 (10th Cir. 1988)

(quotation omitted) (alternation in original). However, in this case, neither the

parties nor the district court have distinguished the roles played by each of the

ONBDD defendants from the role played by Mr. Henry. More specifically,

neither the parties nor the district court have addressed the question of whether

Ms. Dodd’s and Mr. Atwood’s approval of Mr. Turner’s talking to Mr. Henry

about Mr. Worrell constituted sufficient personal participation in the alleged

retaliation to support a § 1983 claim against them. Additionally, the record

contains little factual detail as to these two supervisors’ involvement in the

challenged actions.

Accordingly, we conclude that the resolution of the question of Ms. Dodd’s

and Mr. Atwood’s liability, if any, under the retaliation framework set forth above

requires further development of the record and an opportunity by the parties to

38
present their arguments. We, therefore, leave it to the district court to resolve the

First Amendment claims against Ms. Dodd and Mr. Atwood upon remand.

D. Qualified Immunity (of Defendant Turner)

Finally, Mr. Worrell requests this court to address the issue of qualified

immunity. He notes that all of the defendants raised the defense of qualified

immunity in their summary judgment motions but that the district court, in ruling

on the merits, did not address that defense. Mr. Worrell contends that, in the

event that we reverse summary judgment as to one or more of the defendants,

the interests of judicial economy indicate that we should address the issue of

qualified immunity in this appeal rather than allowing the defendants to reassert

the defense on remand.

Our precedent allows us to reach the qualified immunity issue if the parties

have had an adequate opportunity to advance their arguments. See Andersen , 100

F.3d at 729 (“Because both parties fully argued the issue of qualified immunity

before the district court and on appeal, and because we find that the proper

resolution of this issue is apparent, we will consider this legal question.”). Here,

the defendants raised the issue of qualified immunity in their summary judgment

motions. However, because we have ruled in favor of the defendant Henry on the

39
merits and because we are remanding the claims against Ms. Dodd and Mr.

Atwood for further development, we will address only the defendant Mr. Turner’s

qualified immunity claim.

“Under the doctrine of qualified immunity, ‘government officials

performing discretionary functions generally are shielded from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Ramirez

v. Oklahoma Dept. of Mental Health, 41 F.3d 584, 592-93 (10th Cir. 1994)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Workman v.

Jordan, 958 F.2d 332, 336 (10th Cir. 1992) (“If [defendants’] actions are those

that a reasonable person could have believed were lawful, defendants are entitled

to dismissal before discovery.”). In order for a right to be “clearly established”

for purposes of assessing entitlement to qualified immunity:

[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right. This is not to say that an official action
is protected by qualified immunity unless the very action
in question has previously been held unlawful, but it is to
say that in the light of pre-existing law the unlawfulness
must be apparent.

Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations omitted).

Here, Mr. Worrell has alleged that Mr. Turner violated his First

Amendment right to testify at trial. Decisions of this circuit have held that the

40
right to testify truthfully is clearly established. Langley v. Adams County, Colo. ,

987 F.2d 1473, 1479 (10th Cir. 1993) (“The law is clearly established that the

‘First Amendment protects the right to testify truthfully at trial.’”) (quoting

Melton , 879 F.2d at 714); see also Lytle , 138 F.3d at 864 n.2 (recognizing the

heightened protection afforded trial testimony). As we have noted, we must here

afford Mr. Worrell the benefit of the favorable inference that his testimony was

truthful.

Although decisions applying the Pickering balancing have concluded that

an employer’s interests may sometimes outweigh the employee’s First

Amendment interest in providing truthful testimony, Mr. Turner has identified no

controlling authority applying the Pickering approach to the conduct of a third

party who is not the plaintiff’s employer or prospective employer and who is not a

party to a contract with him. As set forth above, absent such authority, Mr.

Turner’s conduct should be assessed under the framework regarding allegations of

retaliation outside the employment context.

Under that framework, the defendant’s intent is the key element. “‘An act

taken in retaliation for the exercise of a constitutionally protected right is

actionable under § 1983 even if the act, when taken for a different reason, would

have been proper.’” See DeLoach v. Bevers , 922 F.2d 618, 620 (10th Cir. 1990)

(quoting Matzker v. Herr , 748 F.2d 1142, 1150 (7th Cir. 1984)). Moreover, “[t]he

41
unlawful intent inherent in such a retaliatory action places it beyond the scope of

[an official’s] qualified immunity if the right retaliated against was clearly

established.” DeLoach , 922 F.2d at 620.

As explained above, viewing the evidence in the light most favorable to Mr.

Worrell, a trier of fact could conclude that Mr. Turner acted in retaliation for Mr.

Worrell’s truthful trial testimony when he advised Mr. Henry that he would not

cooperate with the drug task force if Mr. Worrell was the coordinator. Because

the right to testify truthfully is clearly established, see Lytle , 138 F.3d at 864 n.2;

Langley , 987 F.2d at 1479; Melton , 879 F.2d at 714, Mr. Turner is not entitled to

qualified immunity on this record.

III. CONCLUSION

For the reasons set forth above, we conclude that the district court properly

granted summary judgment in favor of the defendant Mr. Henry on the plaintiff

Mr. Worrell’s First Amendment claim. However, the district court erred in

granting summary judgment to the defendants Mr. Turner, Ms Dodd, and Mr.

Atwood. On this record, Mr. Turner is not entitled to qualified immunity on Mr.

Worrell’s First Amendment claim.

Accordingly, the district court’s order is AFFIRMED in part, VACATED in

part, and REMANDED for proceedings consistent with this opinion.

42
43