F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 10 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DONALD A. COOPER,
Plaintiff-Appellee,
v. No. 03-8035
(D.C. No. 02-CV-1072-B)
TOWN OF BAR NUNN, WY, (D. Wyo.)
Defendant,
and
CHARLES ANDERSON, individually
and in his official capacity as Bar
Nunn Fire Chief,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL , ANDERSON , and BRISCOE , Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the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.
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.
Defendant-appellant Charles Anderson, Fire Chief for the Town of Bar
Nunn, Wyoming, has filed an interlocutory appeal from the district court’s denial
of qualified immunity in a 42 U.S.C. § 1983 action. Donald A. Cooper filed the
civil rights complaint alleging defendants Anderson and Bar Nunn violated his
First Amendment free speech rights when Anderson suspended and ultimately
terminated him as a fireman in retaliation for his speaking about matters of public
health and safety. Anderson filed a motion for summary judgment alleging he
was entitled to qualified immunity. In a thorough, well-reasoned opinion, the
district court denied that motion. See Cooper v. Town of Bar Nunn , 257 F. Supp.
2d 1363 (D. Wyo. 2003). Anderson appeals, and we affirm.
“The denial of a summary judgment motion ordinarily is not an appealable
final order.” Bass v. Richards , 308 F.3d 1081, 1086 (10th Cir. 2002). Thus, we
ordered Anderson to show cause why his appeal should not be dismissed for lack
of jurisdiction. A district court’s denial of qualified immunity “is subject to
appeal, however, when the defendants are public officials asserting a qualified
immunity defense and the appealed issue is whether a given set of facts
establishes that defendants violated clearly established law.” Id. Interlocutory
immunity appeals are limited to purely legal challenges, and may not turn on
-2-
questions of evidentiary sufficiency. See id . Anderson argues that he is entitled
to qualified immunity under the plaintiff’s version of the facts, and his appeal
focuses on the legal issues of whether plaintiff’s speech touched on a matter of
public concern and whether it was outweighed by the government’s interest in
promoting efficient governmental services, see Gardetto v. Mason , 100 F.3d 803,
811 (10th Cir. 1996) (identifying these as legal questions), and whether the
constitutional right he allegedly violated was clearly established; thus, we
conclude that we have jurisdiction to hear this appeal, see DeAnzona v. City &
County of Denver , 222 F.3d 1229, 1233 (10th Cir. 2000) (“If the defendant argues
that [he] is entitled to qualified immunity under the plaintiff’s version of the facts
because the plaintiff has not demonstrated a violation of clearly established law,
this Court may properly exercise jurisdiction over an interlocutory appeal.”). “We
review the denial of a summary judgment motion raising a qualified immunity
defense de novo.” Hulen v. Yates , 322 F.3d 1229, 1236 (10th Cir. 2003).
The district court opinion recites the relevant facts; thus, we only briefly
repeat them here. The Bar Nunn Fire Department conducted a prescribed burn on
a local ranch as a training exercise. Plaintiff was a member of the Bar Nunn Fire
Department and was an experienced wildland firefighter. Neither plaintiff nor
Anderson attended the burn. At the next Fire Department meeting, the
firefighters had an open forum to discuss and critique the burn. At the critique,
-3-
plaintiff asked if the firefighters had obtained a site-specific weather forecast and
was told they had not. He asked if the burn had performed as expected and was
told no fire behavior predictions had been calculated. He asked who in the room
had previous experience with prescribed burns, and only one or two Fire
Department members had. As the meeting concluded, plaintiff approached Bar
Nunn’s Assistant Fire Chief, Charles Johnson, and told him he was amazed at
how they had conducted the burn; that they were fortunate there had been no
injuries or problems; that the burn had been an unnecessary risk; and that the
department should use plaintiff as a resource if it wished to conduct future
prescribed burns. Their conversation became loud.
Several days later, Anderson, who had not been at the critique, summoned
plaintiff to the fire station and told him he had heard complaints about plaintiff’s
behavior at the meeting. Anderson immediately suspended plaintiff from the Fire
Department, stating he needed to investigate the matter, and warned plaintiff he
was subject to arrest for trespassing if he set foot in the station or answered any
fire calls. According to plaintiff, no Bar Nunn official ever told him he was off
suspension. A little over one year later, Anderson sent a letter to plaintiff stating
he was terminated from the Fire Department “[d]ue to our inability to resolve the
problem of the disruption that occurred last year at the critique of the training
exercise.” Aplt. App. at 62. Plaintiff then initiated this suit.
-4-
It is well-established that a government employer “cannot condition public
employment on a basis that infringes the employee’s constitutionally protected
interest in freedom of expression.” Connick v. Myers , 461 U.S. 138, 142 (1983).
It is also “amply clear” that “public employee speech alleging a danger to public
health or safety is protected by the First Amendment.” Lee v. Nicholl , 197 F.3d
1291, 1296 (10th Cir. 1999). We evaluate whether a public employee’s speech is
constitutionally protected under the four-step test derived from Connick and
Pickering v. Board of Education , 391 U.S. 563 (1968). See Gardetto , 100 F.3d at
811. First, we “must determine whether the employee’s speech can be ‘fairly
characterized as constituting speech on a matter of public concern.’” Id. (quoting
Connick , 461 U.S. at 146). Second, if it can, we must then “balance the
employee’s interest, as a citizen, in commenting upon matters of public concern
against ‘the interest of the State, as an employer, in promoting the efficiency of
the public service[s] it performs through its employees.’” Id. (quoting Pickering ,
391 U.S. at 568). As noted above, these first two questions are legal in nature
and are for the court to resolve. See id . It is for a jury to resolve the remaining
two factual questions: whether plaintiff’s protected speech was a substantial or
motivating factor in the adverse employment decision, and, if so, whether the
employer would have made the same employment decision in the absence of the
protected speech. See id .
-5-
The district court found that plaintiff’s speech touched on matters of
sufficient public concern to merit constitutional protection, specifically speech
alleging a danger to public health or safety. See Cooper , 257 F. Supp. 2d at 1370.
Anderson argues on appeal that this finding was erroneous, asserting that none of
plaintiff’s comments were matters of public concern, but rather were merely
matters of personal curiosity to him as a fireman. We agree, however, with the
district court that plaintiff’s comments evidenced a concern for the safety of the
public, both in content and in the context of a public meeting called to critique
the burn. See Lee , 197 F.3d at 1295 (examining content and context of speech to
conclude it was related to public safety and was motivated by public concern).
Anderson argues that, because plaintiff was not present at the burn, his comments
did not “sufficiently inform the issue as to be helpful to the public in evaluating
the conduct of the government.” Id. We disagree. Plaintiff’s questions and
comments informed the public that the Bar Nunn firefighters had lit the prairie
without first obtaining predictions of fire behavior, fire travel speed, fire intensity
or a site-specific weather forecast, and that almost none of the participants had
experience with prescribed burns. Given plaintiff’s experience as a firefighter
and his particular experience with wildland fires, his questions and comments
sufficiently informed the issue of the government’s adherence to safety
procedures during the burn exercise to be helpful to the public, even though he
-6-
was not present at the burn. See Belcher v. City of McAlester , 324 F.3d 1203,
1208 n.6 (10th Cir. 2003) (noting that firefighter’s viewpoints about proposed
purchase of a truck might be valuable to public, which lacked his expertise).
The district court next found that the government’s interest in regulating
his speech to maintain an efficient workplace did not outweigh plaintiff’s interest
in the protected speech. Anderson contends this finding was in error because
plaintiff’s argument with Charles Johnson and his subsequent failure to
participate in Department meetings and training activities disrupted the official
functions of the Fire Department. This latter argument is based on Anderson’s
assertion, contradicted by plaintiff, that he reinstated plaintiff shortly after the
suspension and terminated him because plaintiff failed to attend Department
meetings and activities. As discussed above, however, we must accept plaintiff’s
version of the facts in this interlocutory immunity appeal. We conclude, for the
reasons stated by the district court, that there is little or no evidence that
plaintiff’s questions and comments impaired discipline or co-worker harmony in
the Fire Department. See Cooper , 257 F. Supp. 2d at 1371 (noting evidence that
plaintiff did not disrupt the critique meeting in any way, and that all Department
members other than Johnson were willing to work with plaintiff). Anderson
failed to show that regulating or restricting plaintiff’s speech was “necessary to
-7-
prevent the disruption of official functions or to insure effective performance by
the employee.” Gardetto , 100 F.3d at 815 (quotation omitted).
Finally, Anderson contends plaintiff failed to show a violation of a clearly
established constitutional right. He argues that plaintiff’s speech was not
constitutionally protected because it was not based on plaintiff’s personal
knowledge of the prescribed burn, and he contends there is no clearly established
law discussing the level of personal knowledge required to give speech protected
status. His argument is not supported by law or fact. Anderson cites Mekss v.
Wyoming Girls’ School , 813 P.2d 185 (Wyo. 1991), which does not hold, as he
contends, that speech is not entitled to constitutional protection if it is not based
on the employee’s personal knowledge. Although the court in Mekss questioned
whether an employee’s unsubstantiated accusation touched on a legitimate matter
of public concern under Connick , 461 U.S. at 146, the court ultimately assumed
for the sake of argument, without deciding the issue, that the speech met the
public concern test. 813 P.2d at 197-98. Moreover, plaintiff did not make
unsubstantiated accusations; rather, he asked questions about the conduct of the
prescribed burn, and, when the responses to his questions indicated a failure to
follow safety procedures, expressed his resulting safety concerns to Charles
Johnson. As noted above, it is clearly established in this circuit that “public
employee speech alleging a danger to public health or safety is protected by the
-8-
First Amendment,” s ee Lee , 197 F.3d at 1296, and, under Connick, plaintiff’s
speech did touch on a legitimate matter of public concern. Thus, under plaintiff’s
version of the facts, the district court correctly ruled that Anderson violated
clearly established law.
The judgment of the district court is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
-9-