Maestas v. Segura

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 25, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

BENNIE MAESTAS; RAY HORT,

Plaintiffs-Appellants,
v. No. 04-2028
DAVID A. SEGURA; DENNIS PRATT,
in their individual capacities; CITY OF
ALBUQUERQUE; MARTIN CHAVEZ,
Mayor of Albuquerque,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-02-1052-JP/RLP)

Kent Winchester, Albuquerque, New Mexico, for Plaintiffs-Appellants.

Robert M. White, City Attorney, and Paula I. Forney, Assistant City Attorney,
Albuquerque, New Mexico, for Defendants-Appellees.

Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.*

*
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.
BALDOCK, Circuit Judge.

Plaintiffs Bennie Maestas and Ray Hort are employees of the City of

Albuquerque’s Solid Waste Management Department (SWMD). They sued Defendants

David Segura and Dennis Pratt under 42 U.S.C. § 1983.1 Plaintiffs alleged Defendants

retaliated against them in violation of the First Amendment after Plaintiffs spoke out

on waste and inefficiency within the Vehicle Maintenance Division (VMD) of SWMD.

The district court granted Defendants summary judgment and Plaintiffs appealed. We

exercise jurisdiction under 28 U.S.C. § 1291. We review the district court’s grant of

summary judgment de novo and affirm, albeit on different grounds.2 See Young v.

United States, 394 F.3d 858, 861 (10th Cir. 2005).

1
Plaintiffs also named Mayor Martin Chavez and the City of Albuquerque
as defendants in their complaint. In their opening brief, Plaintiffs expressly state they
are not appealing the district court’s grant of summary judgment in favor of Chavez.
Furthermore, Plaintiffs briefs are devoid of any issue statement relating to municipal
liability or argument as to why municipal liability is appropriate in this instance. See
Gaither v. Aetna Life Ins. Co., 388 F.3d 759, 777 (10th Cir. 2004) (explaining that
unraised issues and undeveloped arguments on appeal are waived). In any event,
Plaintiffs’ claims against the City necessarily fail because we hold Plaintiffs failed
to present sufficient evidence to establish a constitutional violation against either
Defendant. See Triglet v. City of Tulsa, 239 F.3d 1150, 1154-56 (10th Cir. 2001)
(§ 1983 requires a predicate constitutional violation to support municipal liability).
2
Although Defendants couched their motion for summary judgment in terms
of qualified immunity, the district court ultimately applied the traditional summary
judgment standard in granting Defendants’ motion. We too apply that standard to
resolve this appeal against them. See Petersen v. Farnsworth, 371 F.3d 1219, 1224
(10th Cir. 2004) (declining to consider defendants’ entitlement to qualified immunity
where no constitutional violation occurred).

2
 I.

Plaintiff Maestas began working for the City of Albuquerque in 1989. In

1994, Maestas became “materials manager” at VMD. VMD, a division of SWMD, is

responsible for maintenance, repair, and operation of the City’s fleet of refuse trucks and

equipment. SWMD is responsible for developing the specifications for VMD’s refuse

trucks and equipment. In 1997 Maestas formally complained about a tire shredder’s

failure to meet bid specifications. Maestas informed an internal auditor for the City,

Rick Williams, and the local newspaper, the Albuquerque Journal, that SWMD

substantially overpaid for the defective shredder. Maestas also complained in 1998

to Defendant Pratt, superintendent of VMD, about SWMD buying overpriced and

defective refuse trucks that required costly repairs and did not meet bid specifications.

Frustrated with Pratt’s apparent indifference, Maestas never again complained to Pratt.

Maestas did, however, continue to complain about waste and inefficiency at VMD

to Williams, city councilors, and the media. Maestas’ complaints did not fall on deaf

ears. An internal audit into SWMD’s purchase of the tire shredder, refuse trucks, and

replacement parts revealed numerous problems requiring corrective action. A 1999 audit

report revealed SWMD purchased refuse trucks from a single vendor between 1995 and

1999 that did not meet bid specifications. “Follow-ups” to the audit report continued

to uncover problems. Following his transfer to SWMD’s Central Service Division (CSD)

in April 2002, Maestas continued to complain about waste and inefficiency at VMD.

3
 Plaintiff Hort began working for the City as a mechanic in 1986. Hort began

voicing complaints shortly after he became “permanent.” The City promoted Hort to

“solid waste supervisor” sometime in the mid 1990s. Hort worked at various times in

the tire shop, the parts room, and as a floor foreman overseeing mechanics. In 1996,

Hort complained to Pratt about the high cost of hydraulic parts. Hort acknowledged

he did not know the terms of VMD’s parts contract, but complained because Maestas

told him the parts cost too much. Hort also complained to the assistant superintendent

at VMD, Frank Ortega, about problems with front-loader refuse trucks. In 1998,

Hort complained about unsafe tires that did not meet bid specifications. Like Maestas,

Hort had little contact with Pratt. Instead, Hort complained to intermediate managers,

Williams, and city councilors. Hort also raised issues of overcharges to SWMD’s senior

buyer. Hort remained a VMD supervisor until his transfer to SWMD’s Clean City

Division (CCD) in April 2002.

Sometime between 1997 and 2000, Pratt called a meeting with Maestas and

Hort to discuss certain internal memos.3 The memos addressed problems with the

recapping of tires. Pratt suspected the two men sent the memos to internal auditors

and “leaked” them to a local television news station. Maestas and Hort denied the

3
Plaintiffs and Defendants in their respective depositions had difficulty providing
specific and consistent time frames for the occurrence of critical events. We view the
facts in the light most favorable to Plaintiffs. See Howlett v. Birkdale Shipping Co.,
512 U.S. 92, 94 (1994).

4
accusations. After further investigation, Pratt called a second meeting with Maestas

and Hort: “I again confronted them with . . . them saying they never sent them. ‘I

need you guys to let me know if you are going to be doing this sort of stuff because I

can’t stop anyone from doing it, but at least you could let me know.’” Pratt subsequently

held a meeting with all VMD supervisors/managers and asked them to follow the chain

of command: “‘Let’s keep this stuff in-house. If we can’t handle it, you don’t think

I’m handling it, go to the director, work your way up through the chain of command.”

Several months later, in December 2001, Martin Chavez became the City’s newly

elected mayor. Chavez appointed Defendant Segura as acting director of SWMD on

the first day of the new administration. Chavez’s first priority as mayor was cutting

costs and reducing debt. The mayor promptly “asked every director to come up with

a 10% budget cut across the board.” Segura, in turn, directed SWMD division heads,

including Pratt, “to look at programs or positions” to cut. In January 2002, Chavez

requested another city-wide 10% budget cut. Segura directed his division heads

“to cut deeper” and “look at personnel.”

Consistent with Segura’s instructions, Pratt considered possible personnel

cuts. Because Segura had changed SWMD work shifts from ten hours to eight

hours and eliminated the Saturday shift, Pratt concluded he could eliminate four

supervisory/managerial positions. Pratt proposed to eliminate the positions of materials

manager, assistant fleet manager, and two supervisors, which would save VMD $300,000.

5
Pratt proposed to retain three supervisory/managerial positions at VMD–one for the day

shift, one for the night shift, and one for outlying locations. Pratt submitted his proposal

to Segura in early 2002. Pratt’s submission ended his role in the 2003 fiscal year budget

process. Segura accepted Pratt’s proposal and included the personnel cuts in his 2003

budget recommendation to the Chavez administration. Segura made the final decision

to “defund” or “deappropriate” the four positions. He did not recall specifically

discussing either Maestas or Hort with Pratt during his decisional process.

Williams informed Maestas and Hort in late December 2001, or early January

2002, about possible layoffs. In late January 2002, Maestas and Hort delivered letters,

written by Williams, to the City’s human resources department, district attorney, city

attorney, chief administrative officer, and Segura. Both men complained they were

experiencing a hostile work environment in retaliation for raising concerns about

the misuse of public funds at VMD. Maestas and Hort asserted unnamed SWMD

management personnel informed them they would be disciplined for speaking out;

however, they later acknowledged neither Segura nor Pratt threatened them with

disciplinary action. Rather, Plaintiffs claimed they heard about the threats from

“various employees” within SWMD.4

4
In the district court, Maestas asserted Tito Montoya, an SWMD employee, told
Maestas he overhead a conversation in which Mayor Chavez told Segura “f those
two individuals. I have enough votes on the City Council to get rid of them.” Maestas
assumed the mayor was referring to himself and Hort. Montoya, however, testified he
(continued...)

6
 In early April 2002, the City’s human resources department informed Maestas

of the proposal to eliminate his position at VMD. The memo emphasized it was not

a layoff notice and no such notice would be given “unless and until” the proposed

deappropriation became part of the final 2003 budget. Because of Hort’s seniority,

he did not receive a notice despite the proposal to eliminate his supervisory position

at VMD. Maestas submitted a letter to the city council on the day of its budget meeting.

Therein, Maestas referred to SWMD as “Solid Waste Enron.” Maestas informed the

council that he persistently complained about SWMD’s wasteful unreported spending

for over six years. Maestas objected to his proposed layoff as “blatant retaliation”

by “our supervisor and director.” At the council meeting, Maestas personally voiced

concern for his and Hort’s jobs. He asked the council to delay voting on the proposed

deappropriation until the release of further audit reports. The city council voted to place

funding for three of the four positions proposed for deletion back into SWMD’s general

budget fund. The council did not earmark the funding for any particular positions within

SWMD. The council voted to defund one supervisory position which was vacant at the

time of the meeting.

(...continued)
4

never overhead the alleged conversation, and never told Maestas about any such
conversation. Segura stated he did not have any conversation with Chavez about
Maestas or Hort. Because Plaintiffs do not pursue their retaliation claim against
Chavez on appeal, this factual dispute is immaterial. See supra n.1.

7
 The next day, Pratt asked Segura whether the three positions would remain

in VMD. Segura suggested that because VMD no longer needed the positions, he might

utilize the funding elsewhere within SWMD. Segura and Pratt had previously identified

the work of the materials manager as duplicative of other work performed in VMD.

Based upon an audit report that identified a problem in CSD with inventory control of

refuse carts and bins, Segura reassigned Maestas to CSD. Maestas retained the same

salary, benefits, and job title. No one replaced Maestas as materials manager at VMD.

Due to shift restructuring, Segura and Pratt also concluded they could eliminate a

supervisor’s position at VMD. Hort acknowledged he had the least seniority of VMD’s

three day supervisors. Based upon Chavez’s call for reduced graffiti response time,

Segura reassigned Hort to supervise the graffiti response crew in CCD. Hort too

retained the same salary, benefits, and job title. The day shift supervisor at VMD

assumed Hort’s former duties.

II.

Plaintiffs Maestas and Hort argue Defendants Segura and Pratt retaliated against

them for speaking out on matters of public concern in violation of the First Amendment.

Applying the familiar four part test to determine whether a public employer has violated

an employer’s right to free speech, the district court first concluded the evidence was

sufficient for a reasonable jury to find Plaintiffs’ speech was a substantial motivating

factor in Defendants’ decision to transfer Plaintiffs out of VMD–transfers which,

8
according to the district court, constituted adverse employment actions. Nevertheless,

the court ultimately concluded Defendants would have reached the same decision absent

Plaintiffs’ speech. Because we conclude no reasonable jury could find Plaintiffs’ speech

was a substantial motivating factor in Defendants’ decision to transfer them out of VMD,

our inquiry ends there.

A.

A government employer may not, as a condition of employment, compel

an employee to relinquish carte blanche his First Amendment right to comment on

matters of public concern. See Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

Such employer, however, is not constrained from altering an employee’s conditions of

employment for legitimate reasons. To prevail on a claim of retaliation in the free speech

context, the employee must establish (1) the speech involved a matter of public concern,

(2) the employee’s interest in engaging in the speech outweighed the employer’s interest

in regulating the speech, and (3) the speech was a “substantial motivating factor” behind

the employer’s decision to take an adverse employment action against the employee.

See Baca v. Sklar, 398 F.3d 1210, 1218-19 (10th Cir. 2005); see also Mount Healthy

City Sch. Dist. v. Doyle, 429 U.S. 274, 287 (1977) (equating “substantial” factor with

“motivating” factor). If the employee establishes these three factors, he wins unless

(4) the employer establishes it would have taken the same action in the absence of

the protected speech. Baca, 398 F.3d at 1219; see also Ballard v. Muskogee Reg’l

9
Med. Ctr., 238 F.3d 1250, 1252 (10th Cir. 2001) (noting the trio of Supreme Court

cases which fashioned the four part test). The first two factors present questions of

law. The latter two factors address causation and present questions of fact subject

to the preponderance of the evidence standard. See Baca, 398 F.3d at 1219.

Defendants in this case concede the first two factors. Under the third factor,

the employee has the initial burden of establishing causation–that is, to show the

exercise of constitutionally protected speech was a substantial motivating factor in

the employer’s decision to adversely alter the employee’s conditions of employment.5

What constitutes a substantial motivating factor evades precise definition. An employee

“need not prove his speech was the sole reason for defendants’ action.” Copp v. Unified

5
The employee also bears the burden under the third factor of establishing
an adverse employment action. See Vanderhurst v. Colorado Mountain College Dist.,
208 F.3d 908, 914 n.1 (10th Cir. 2000). The circuits are split as to what may constitute
adverse employment action in the context of a First Amendment claim. Compare Spiegla
v. Hull, 371 F.3d 928, 941 (7th Cir. 2004) (any action that is likely to deter the exercise
of free speech is adverse) with Stavropoulos v. Firestone, 361 F.3d 610, 619-20 (11th
Cir. 2004) (action must tend to chill free speech and alter some important condition of
employment to be adverse). We have repeatedly stated that some forms of retaliation may
be actionable under the First Amendment while insufficient to support a discrimination
claim under Title VII. See Baca, 398 F.3d at 1220; Wells v. Colorado Dept. of Transp.,
325 F.3d 1205, 1220 (10th Cir. 2003). In Schuler v. City of Boulder, 189 F.3d 1304,
1309 (10th Cir. 1999), we recognized that retaliation involving “promotion, transfer,
recall after layoff, and hiring decisions” may be actionable under the First Amendment
“although not amounting to termination of employment or the substantial equivalent of
dismissal.” That is as far as we have gone. Unlike the Seventh Circuit, we have never
held employment action which may tend to chill free speech is necessarily adverse.
See Baca, 398 F.3d at 1220. Given our conclusion that Plaintiffs’ speech was not
a substantial motivating factor for their respective transfers within SWMD, we
continue to leave that question for another day.

10
Sch. Dist. No. 501, 882 F.2d 1547, 1554 (10th Cir. 1989). Nor is the employee required

to show “but-for” causation; that is, to demonstrate but-for the employee’s speech the

subsequent employment action would not have occurred. See Spiegla v. Hull, 371 F.3d

928, 941-43 (7th Cir. 2004). Rather, the employee must show the protected speech

played a substantial part in the employer’s decision to adversely alter the employee’s

conditions of employment. See Anderer v. Jones, 385 F.3d 1043, 1052 n.14 (7th Cir.

2004); Quinn v. Monroe County, 330 F.3d 1320, 1329 n.10 (11th Cir. 2003); Ostad v.

Oregon Health Sciences Univ., 327 F.3d 876, 885 (9th Cir. 2003); Davis v. Goord, 320

F.3d 346, 354 (2d Cir. 2003); Suppan v. Dadonna, 203 F.3d 228, 236 (3d Cir. 2000).6

To withstand summary judgment at step three, therefore, an employee must

produce evidence linking the employer’s action to the employee’s speech. See

Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584, 596 (10th Cir. 1994),

overruled in part on other grounds, Ellis v. University of Kansas Med. Ctr., 163 F.3d

6
In Hasan v. United States Dept. of Labor, 400 F.3d 1001 (7th Cir. 2005), the
Seventh Circuit sought “to clarify the requirements of proving causation in a retaliation
case.” Id. at 1005. Hasan provided three instances where a plaintiff claiming retaliation
based on the exercise of free speech could establish a prima facie case of causation. The
third instance was where “[t]he improper reason may have been present to the defendant’s
mind as something favoring the action he took, but have weighed so lightly in comparison
with other factors that it exerted no influence at all on his decision.” Id. at 1006. We
disagree that such a showing is sufficient to shift the burden to an employer to show
it would have reached the same decision despite the improper factor. See Mt. Healthy,
429 U.S. at 287. Where an improper factor exerts little or no influence on the employer’s
decision, such factor cannot be said to have played a substantial part in the employment
decision.

11
1186, 1194-98 (10th Cir. 1999). Speculation or hunches amidst rumor and innuendo

will not suffice. See Perez v. Pierluisi, 339 F.3d 43, 56 (1st Cir. 2003). Nor can a

plaintiff sustain his burden at step three “simply by showing that the elimination of the

protected activity may have been welcomed by the defendants[.]” Wright v. Illinois

Dept. of Children & Family Servs., 40 F.3d 1492, 1500 (7th Cir. 1994) (internal

quotations omitted); accord Collyer v. Darling, 98 F.3d 211, 229 (6th Cir. 1996).

Adverse action in close proximity to protected speech may warrant an inference

of retaliatory motive. See Baca, 398 F.3d at 1221. But temporal proximity is insufficient,

without more, to establish such speech as a substantial motivating factor in an adverse

employment decision. Id; see also Morfin v. City of East Chicago, 349 F.3d 989, 1005

(7th Cir. 2003) (explaining protected conduct cannot be a basis for retaliation where

defendants did not know of such conduct). An employer’s knowledge of the protected

speech, together with close temporal proximity between the speech and challenged

action, may be sufficiently probative of causation to withstand summary judgment.

See Ramirez, 41 F.3d at 596. Other evidence of causation may include evidence the

employer expressed opposition to the employee’s speech, see Alpha Energy Savers,

Inc. v. Hansen, 381 F.3d 917, 929 (9th Cir. 2004), or evidence the speech implicated

the employer in serious misconduct or wrongdoing. See Baca, 398 F.3d at 1221.

On the other hand, evidence such as a long delay between the employee’s speech

and challenged conduct, see McGuire v. City of Springfield, 280 F.3d 794, 796

12
(7th Cir. 2002), or evidence of intervening events, see Gubitosi v. Kapica, 154 F.3d

30, 33 (2d Cir. 1998), tend to undermine any inference of retaliatory motive and

weaken the causal link.

B.

In this case, Plaintiffs Maestas and Hort have failed to present sufficient evidence

linking their speech to Defendant Segura’s decision to transfer them within SWMD.

Segura became acting director of SWMD in December 2001. By that time, Maestas and

Hort had been voicing concern about the misuse of public funds at VMD for over four

years. Nothing in the record indicates, however, Segura knew of Plaintiffs’ complaints

when, in the early days of the new administration, he received Mayor Chavez’s first,

and then second, directive to cut SWMD’s budget. Segura’s undisputed testimony

was that he never received a personnel briefing upon his arrival at SWMD.

Consistent with Chavez’s second call for city-wide budget cuts, Segura in early

January 2002 informed all SWMD division heads, including Pratt, that deeper cuts were

required and they should look more closely at personnel. Segura did not become aware

of VMD’s fiscal problems until Councilman Greg Payne subsequently provided him with

a copy of the audit report. Still, nothing in the record suggests Segura knew, at that point,

Plaintiffs’ complaints spawned the report. Rather, Segura became aware of Plaintiffs’

involvement in late January 2002 when he received their respective letters complaining

about a hostile work environment at SWMD. The letters, however, failed to identify

13
any specific instances of hostility as a result of Plaintiffs’ “whistle-blowing” activities

or allege any personal involvement on the part of Segura or Pratt.

Segura never suggested to Pratt or anyone else at SWMD that he wanted to target

Plaintiffs for layoff. In fact, Defendants never spoke to each other specifically about

Plaintiffs. Segura properly delegated the task of determining where personnel cuts might

be made at VMD to Pratt. Segura adopted Pratt’s proposal to eliminate the position

of VMD materials manager because he could not justify maintaining the position.7

He adopted Pratt’s proposal to eliminate two supervisor positions from VMD

because shift restructuring made those positions expendable.

That the city council refused to defund Plaintiffs’ positions amidst their assertions

of unlawful retaliation against Segura and Pratt is understandable. Today, threats of legal

action routinely hinder the operations of public institutions and hamper government

officials’ ability to reach sensible decisions based upon legitimate criteria. Plaintiffs’

successful pleas to the council notwithstanding, nothing in the record suggests Segura

7
Segura explained his decision to accept Pratt’s proposal to eliminate VMD’s
materials manager position:

Well, I had gone through the divisions, and I went through Vehicle
Maintenance Division, and I felt that . . . it was too top heavy, that we
needed to get rid of the[] [positions]. There was too much duplication
especially in the purchasing side, because we had . . . Jaramillo. He did
all the purchasing for my department, and I had . . . Sedillo, who was the
parts manager and his staff. I couldn’t justify materials manager in that
position of Vehicle Maintenance.

14
possessed an improper motive when he transferred Plaintiffs to new positions within

SWMD, where they remained under his direction. Segura’s decision to transfer Plaintiffs

out of positions for which SWMD no longer had any need and into newly-created

positions for which SWMD had a demonstrated need made good business sense. In

sum, Plaintiffs presented insufficient evidence for a reasonable jury to conclude that

an improper motive played a substantial part in Segura’s decision to transfer them

into their current positions.8

As the Supreme Court succinctly explained in Rutan v. Republican Party, 497

U.S. 62, 76 (1990), “[t]he First Amendment is not a tenure provision,” and does not

protect public employees from legitimate government action. Our role is not to second-

guess Segura’s decision to transfer Plaintiffs to new positions within SWMD. Our role

is to determine whether Plaintiffs have presented evidence such that a jury reasonably

might find a substantial motivating factor in that decision was Plaintiffs’ protected

speech. We hold they have not.9

8
Segura never had any direct encounter with Hort regarding Hort’s speech.
Segura’s only direct encounter with Maestas regarding Maestas’ speech occurred
in March 2002 after Segura submitted his personnel proposal to the administration.
Segura had seen Maestas’ name quoted in a newspaper article regarding the misuse of
funds at SWMD. We think it entirely unremarkable that Segura, as director of SWMD,
would ask Maestas, his subordinate, why Maestas had not brought his concerns directly
to the director. That Segura may have been displeased with Maestas at that point is not
itself evidence of retaliation. See Wright, 40 F.3d at 1500.
9
In addition to Plaintiffs’ free speech claims, they also raised political
affiliation claims in the district court. Plaintiffs now appear to have abandoned those
(continued...)

15
 C.

We similarly hold Plaintiffs have failed to present evidence sufficient to

establish a causal link between their protected speech, Defendant Pratt’s personnel

recommendation, and Segura’s ultimate decision to transfer Plaintiffs out of VMD.

While Segura made the final decision to transfer Plaintiffs, Pratt, though a subordinate,

might be liable if he possessed a retaliatory motive which set in motion the events that

ultimately led to Plaintiffs’ transfers. See Gilbrook v. City of Westminster, 177 F.3d

839, 855 (9th Cir. 1999) (holding a subordinate fire chief who initiated an investigation

into and recommended the discharge of firefighters liable for violating the firefighters’

free speech rights); Darnell v. Ford, 903 F.2d 556, 561-62 (8th Cir. 1990) (holding a

subordinate patrol major who investigated the conduct of and recommended the demotion

of a captain liable for violating the captain’s associational rights); Professional Assoc.

9
(...continued)
claims as evidenced by their failure to seriously address them in their briefs or pursue
any claim against Mayor Chavez on appeal. See supra n.1. While the record indicates
Plaintiffs openly supported a candidate other than Chavez in the 2001 mayoral election,
the record contains absolutely no evidence the proposal to eliminate Plaintiffs’ positions
or their ultimate transfers out of VMD were politically motivated. Maestas identified
several SWMD employees who had supported candidates other than Chavez without
consequence. Hort stated he did not have any evidence his transfer was politically
motivated. Instead, he had “just a feeling.” The only evidence Hort could muster was
that an unidentified person told city employees Sam Garcia and Frank Castillo, who in
turn told city employee Frank Ortega, who in turn told Hort, that Hort had better support
Chavez. Such triple hearsay would not be admissible at trial; nor is it admissible on
summary judgment. See Adams v. American Guar. & Liab. Ins. Co., 233 F.3d 1242,
1246 (10th Cir. 2000).

16
of College Educators v. El Paso County Cmty. College Dist., 730 F.2d 258, 266-67

(5th Cir. 1984) (holding a subordinate college president who instigated charges against

and recommended the discharge of a college administrator liable for violating the

administrator’s associational rights).

In this case, Pratt did not set in motion the chain of events which ultimately led

to Plaintiffs’ transfers. Plaintiffs had been complaining for over four years about

the mishandling of public funds at VMD without repercussion. See McGuire, 280 F.3d

at 796 (noting that a “long wait” often implies no causation because supervisors seeking

to retaliate likely do so at an earlier stage; delay makes intervening causes more likely).

Plaintiffs had not complained directly to Pratt in over two years. While asking Plaintiffs

to follow the chain of command at one point, Pratt acknowledged he could not do

anything to stop Plaintiffs from complaining.

Several months later, Chavez was elected mayor. Thus began the intervening

events leading to Plaintiffs’ transfers. Chavez’s demand for city-wide budget cuts

prompted Segura to instruct Pratt (and other division heads) to look into cutting

personnel.10 Only then did Pratt, consistent with his director’s instructions, recommend

the deappropriation of four positions at VMD, two of which Plaintiffs occupied.

10
The personnel action included in SWMD’s proposed 2003 budget was
part of a larger plan. According to Anna Lamberson, city budget officer: “The new
administration proposed as a solution to the financial problems the deletion of a total
of 165 filled and 103 vacant positions citywide, as well as freezing 249 vacancies.
Each department identified filled and vacant positions to be deleted.”

17
Pratt was notably silent prior to receiving his instructions and after delivering his

proposal. He did absolutely nothing to suggest he was targeting Plaintiffs because of

their prior speech. In fact, Pratt stated that once he submitted his proposal to Segura:

“That was it for me.” After the city council declined to defund the positions, Pratt

returned to Segura for direction. The record indicates Segura, not Pratt, raised the

idea of transferring Plaintiffs to positions with demonstrated need outside VMD,

but within SWMD. We cannot ignore these legitimate intervening events that led

to Pratt’s personnel proposal and his subsequent decision to seek guidance from

Segura. See Gubitosi, 154 F.3d at 33.

Plaintiffs’ First Amendment claims against Pratt are superficially appealing.

After all, Pratt and VMD were Plaintiffs’ target of persistent attack over a course of

years–perhaps justifiably so. Pratt may have welcomed Plaintiffs’ departure from

VMD. But a plaintiff alleging retaliation “does not meet his burden . . . simply by

showing that elimination of the protected activity may have been welcomed by the

defendants.” O’Connor v. Chicago Transit Auth., 985 F.3d 1362, 1369 (7th Cir. 1993).

Such a showing is insufficient to establish Plaintiffs’ speech as a substantial motivating

factor in Defendants’ employment decision. A public employee, by engaging in

constitutionally protected speech, ought not be able to prevent his supervisor from

assessing employment needs and making decisions on the basis of those needs

“simply because the protected conduct makes the [supervisor] more certain of

18
the correctness of [his] decision.” Mt. Healthy, 429 U.S. at 286.

AFFIRMED.

19
No. 04-2028, Maestas v. Sugura

Briscoe, J., dissenting.

In my view, plaintiffs have presented sufficient material facts to withstand

summary judgment on their First Amendment claims. That is, unlike the majority, my

review of the record under the relevant summary judgment standards leads me to the

conclusion that plaintiffs have produced sufficient evidence to establish their employer’s

adverse employment actions were in direct response to their prior protected speech. I

therefore dissent.

We review the district court’s grant of summary judgment de novo, applying the

same legal standard used by the district court. Simms v. Okla. ex rel. Dep’t of Mental

Health & Substance Abuse Servs., 165 F. 3d 1321, 1326 (10th Cir. 1999). Summary

judgment should be granted “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed.R.Civ.P. 56(c). In applying this standard, we are to review the evidence and

draw reasonable inferences therefrom in the light most favorable to the nonmoving party.

Simms, 165 F.3d at 1326. Further, in First Amendment cases, “an appellate court has 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.” Schalk v. Gallemore, 906 F.2d 491, 494 (10th Cir. 1990) (internal quotation

omitted).
 Viewing the record in the light most favorable to the plaintiffs, the following

chronology of events becomes evident. In December 2001, a local television news team

appeared at SWMD to interview Pratt regarding information the news team had received

from Maestas and Hort about mismanagement and governmental waste. The information

consisted of a packet of internal memorandums between Pratt, Maestas, and Hort.

Pratt realized it was Maestas and Hort who provided this information to the media

and, within a month, Pratt recommended the elimination of their positions. In the months

following Pratt’s recommendation, Maestas and Hort complained publicly about problems

with SWMD and what they viewed as the retaliatory elimination of their positions.

During this same period, Pratt and Segura continued to pursue the elimination of Maestas’

and Hort’s positions. Pratt and Segura eventually proposed a budget that removed

funding for Maestas’ and Hort’s positions.

Maestas and Hort allege Pratt was also aware they were the persons who provided

information to internal auditors regarding mismanagement of SWMD. As a result of the

information Maestas and Hort provided, an internal auditor (Rick Williams) sent a series

of letters to Pratt regarding the concerns raised by Maestas and Hort. Although Maestas

acknowledges he was not directly threatened by Pratt or Segura for providing information

to the City’s internal auditors, he alleges that Pratt’s threats were conveyed to him by

Frank Ortega.

In response to audit inquiries from Williams in March of 2002, Maestas was called

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into a meeting with another SWMD official and was told that Segura did not want

Maestas to provide any additional information to internal audit. In March or April 2002,

Segura spoke with and directly criticized Maestas, who was quoted in a newspaper story,

for speaking to the media before talking to him about concerns with the department.

After learning their positions were being eliminated and they were in danger of

being laid-off, Maestas and Hort communicated with members of the city council, city

administrators, the district attorney’s office, and by a letter sent to Segura in January

2002. In their January 25, 2002, letters and in Maestas’ letter to the city council, Maestas

and Hort raised the same concerns they had previously raised, i.e., serious

mismanagement of SWMD, governmental waste, and retaliation against them for publicly

raising these problems.

At a meeting of the city council on April 9, 2002, the council rejected the

recommendations of Pratt and Segura to eliminate the plaintiffs’ positions and instead re-

appropriated funding for those positions. At this council meeting, Maestas described

Pratt and Segura’s activities as the “Solid Waste Enron.” A week after the city council

meeting, Pratt and Segura transferred Hort and Maestas to other jobs. On April 16, 2002,

Maestas was removed from his job as vehicle maintenance materials manager and

transferred to a previously non-existent unit where he would supervise the inventory of

trash carts and bins. On April 16, 2002, Hort was transferred from his position as a

supervisor of mechanics to a job as a supervisor of graffiti removal.

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 Defendants allege that plaintiffs’ positions were eliminated due to budget cuts.

Maestas and Hort contend, however, that budget cuts were not the reason behind the

elimination of their positions. They cite the city’s published budget (Exhibit P)1 and note

that the approved budget for 2002 SWMD did not decrease, but in fact increased by more

than $1,500,000.00. The SWMD approved budget for 2003 also provided for a spending

increase of an additional $1,500,000, rather than a budget cut. Although the estimated

actual budget decreased between 2001 and 2002, the decrease in budget affected only the

costs for operating, transfers, and grants. The budget for personnel costs was not

reduced, but actually increased by almost $500,000 in 2002.

The district court found support for the defendants’ budgetary reasons for

1
The defendants argued in their reply brief to the trial court that Exhibit P, the
city’s published budget, was inadmissible and thus could not be considered for purposes
of summary judgment. The district court agreed, deeming the exhibit inadmissible
because it was unauthenticated and contained hearsay. The exhibit, however, should have
been admitted in my view. The exhibit, which is part of the City’s published budget that
was produced by the government upon a discovery request by the plaintiffs, falls within a
number of exceptions to the hearsay rule and is properly authenticated for purposes of
summary judgment analysis. For example, the budget falls within the hearsay exception
provided under Federal Rule of Evidence 803(8) for public records and reports. Also, the
budget is authenticated as a document produced through a discovery request and as a self-
authenticating official publication under Federal Rule of Evidence 902(5). In response to
an argument that a letter written by an individual to Phil Donahue should not be
considered in the court’s summary judgment analysis because it was unsupported by a
sworn affidavit, this court concluded that the letter was admissible because it was
obtained through a request for the production of documents. Anderson v. Cramlet, 789
F.2d 840, 845 (10th Cir. 1986). Similarly, the City’s budget should have been deemed
authenticated as an official published document produced in response to a discovery
request.

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elimination of Maestas’ and Hort’s positions by concluding the 2002 fiscal year budget

revealed a mid-year revenue shortfall. However, the budget in question specifically

referenced other actions that were taken to address the shortfall, i.e. recycling was to be

picked up every other week, as opposed to every week, and several major purchases were

delayed to maintain a sufficient working capital balance. Thus, according to the City’s

budget, these 2002 mid-year shortfalls were addressed in other ways which did not

include the elimination of positions.

In support of their decisions to transfer Maestas and Hort to other positions,

defendants indicate they were simply trying to make the best use of the plaintiffs’

employment. Defendants contend Maestas was transferred because an internal audit

indicated it had been ten years since the last physical count of sanitation department carts

and bins. However, as noted by Maestas and Hort, this audit was from the year 2000.

Thus, between November of 2000 and April 15, 2002, no action was taken to inventory

carts and bins, but within one week of the April 9, 2002, City Council meeting, Segura

reassigned Maestas from his position as a materials manager in vehicle maintenance to

supervising a unit created that same day which was allegedly responsible for the inventory

of carts and bins. The lack of clarity concerning Maestas’ new duties also erodes the

defendants’ alleged justification for the transfer. For example, even though the alleged

need for Maestas’ transfer was to perform an inventory of residential and commercial

carts and bins, Maestas’ actual duties were limited to only residential carts. Maestas also

5
states that after his reassignment no inventory was actually performed.

Defendants contend Hort was transferred because Mayor Chavez made cleaning up

graffiti a priority of his administration, and Hort had supervisory skills. Again, however,

the sequence of events is important. Within a week after the April 9, 2002, City Council

meeting, Hort was transferred into this position. As emphasized by Maestas and Hort,

although graffiti clean-up was a priority for Mayor Chavez, the position remained vacant

for approximately four months following Chavez’s entry into office in December 2001.

Defendants also contend Hort was transferred because he was the supervisor with

the lowest seniority in vehicle maintenance. Hort, however, contends that under

departmental seniority rules and based on experience that he is not the person who should

have been transferred. Art Torres actually had less seniority than Hort. Pratt asserted that

Torres had already left the vehicle maintenance division, but conceded that he remained

within the department.

Based on this evidence, a reasonable jury could conclude that the plaintiffs’

protected speech was a substantial motivating factor for Pratt’s and Segura’s threat to

eliminate the plaintiffs’ positions, their budget proposal to eliminate the plaintiffs’

positions, and their transfer of the plaintiffs from positions which would enable them to

gain information and report concerning Segura’s and Pratt’s activities related to the

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SWMD’s truck and tire contracts.2

For these reasons, I would reverse the district court’s grant of summary judgment

on plaintiffs’ First Amendment claims and remand for further proceedings.

2
The majority in footnote 5 states that “[u]nlike the Seventh Circuit, we have
never held employment action which may tend to chill free speech is necessarily
adverse.” The majority cites Baca v. Sklar, 398 F.3d 1210, 1220 (10th Cir. 2005),
wherein we noted the following: “Although we have never delineated what actions
constitute ‘adverse employment actions’ in the First Amendment context, we have
repeatedly concluded that a public employer can violate an employee’s First Amendment
rights by subjecting an employee to repercussions that would not be actionable under
Title VII.” Ultimately, the majority concludes that because this case is resolved upon
another ground, it is unnecessary to determine whether this court should adopt the
tendency to chill free speech standard of the Seventh Circuit. Adding to the dicta, I note
that this court stated in Belcher v. City of McAlester, Oklahoma, 324 F. 3d 1203, 1207 n.
4 (10th Cir. 2003) the following: “In reprimanding Belcher, the fire department chilled
any future attempts to contact Council members outside of a public meeting. We
conclude that this chilling effect is real, and that Belcher has shown that he was subject to
adverse employment action as a result of his speech.” Belcher appears to be relevant to
determining whether the chilling of free speech standard of the Seventh Circuit is applied
in this circuit.

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