Weaver v. Chavez

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 10, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

KAREN HOW DEN W EAVER,

Plaintiff-Appellant,

v. No. 04-2110

M AR TIN C HA VEZ;
CITY O F ALBU QU ERQ UE,

Defendants-Appellees.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D .C . N o. C IV -03-281-BB/LFG )

Submitted on the briefs:

J. Douglas Foster, Foster•Johnson•M cDonald•Lucero•Koinis, LLP, Albuquerque,
New M exico, for Plaintiff-Appellant.

Deborah D. W ells, Kennedy, M oulton & W ells, P.C., for Defendants-Appellees.

Before EBEL, M cCO NNELL, and TYM KOVICH, Circuit Judges.

T YM K O VIC H, Circuit Judge.
 Plaintiff Karen Howden W eaver claimed she was discharged from her

employment with the Albuquerque City Attorney’s Office in violation of her

rights guaranteed by the First Amendment. In particular, she alleged retaliatory

discharge for her political support of an opponent of the mayor, and for her

speech criticizing what she perceived to be patronage hiring in the City

A ttorney’s O ffice. 1 A federal jury rejected her claims. She now appeals, and w e

affirm. 2

I. Background

Karen W eaver had been employed as an Assistant City Attorney for six and

one-half years before her termination in July 2002. She supported Bob Schwartz

in the October 2001 mayoral election, an election that w as won by M artin Chavez.

Shortly after the election, in December 2001, the newly-elected M ayor Chavez

asked for a letter of resignation from each of the approximately thirty-five

attorneys employed by the City Attorney’s Office, and decided to accept three

resignations, including W eaver’s. Upon learning that she w as pregnant, however,

M ayor Chavez changed course. W eaver took maternity leave and returned to the

City Attorneys Office in mid-April 2002.

1
W eaver does not pursue on appeal her claims filed under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17.
2
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

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 Following the 2001 election, W eaver demonstrated a pattern of making

complaints alleging that attorneys had been hired for political reasons. For

example, she claimed that two attorneys hired in 2002, one of whom became her

supervisor, were political hires. She also commented that the promotion of one of

the line attorneys in the office was politically motivated. In June 2002, she made

similar complaints about a prospective attorney hire, Ben Chavez. She asserted

that the mayor had directed the City Attorney, Robert W hite, to hire Chavez even

though he was not the best qualified applicant. She voiced this complaint directly

to W hite, and also sent e-mail messages to attorneys w ithin and outside the City

Attorney’s Office. In addition, she spoke by telephone with the attorney who was

Chavez’s supervisor at his previous place of employment, asking questions about

Chavez’s performance and qualifications. W eaver was not a member of the

office’s hiring committee nor did the City Attorney authorize her conversations

with Chavez’s employer.

On June 13, the City Attorney responded to W eaver’s criticism of his hiring

practices, informing her via e-mail that no one had been selected for political

reasons and cautioning her to be more “reflective” in remarks about her current

and future colleagues. The next day, at the behest of the City Attorney, W eaver’s

immediate supervisor told her to stop interfering with the hiring process, or she

would be fired. W eaver continued to exchange e-mail messages touching on this

subject with a lawyer friend outside the office who had also applied for

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employment with the City Attorney’s Office but had not been hired. A few days

after the June 14 warning, W eaver stormed out of her office, “used the F word,

and said, ‘They have just hired Ben Chavez, . . . he’s a political hack, and he’s

never tried a case.’” Aplt. App. Vol. II, at 605. After the City Attorney and the

supervising deputy attorney reviewed the situation, they decided to discharge

W eaver. H er employment was terminated on July 30, 2002.

W eaver sued, alleging that she was discharged in retaliation for exercising

her First Amendment right to speak on matters of public concern by supporting a

mayoral candidate other than M artin Chavez and by voicing her concerns about

hiring improprieties. The City Defendants responded that W eaver’s termination

was premised on her intemperate remarks about patronage hiring and her

interference in the hiring process. They asserted that W eaver’s conduct caused

sufficient disruption in the City Attorney’s Office to justify firing her.

The district court denied summary judgment and W eaver’s claims were

tried before a jury. At the close of W eaver’s case, finding no evidence to support

the retaliation claim based on her support of the losing mayoral candidate, the

district court entered judgment as a matter of law in the City’s and the M ayor’s

favor. The remaining First Amendment claim was submitted to the jury, which

returned a special verdict finding that W eaver’s “criticism of what she perceived

to be politically motivated hiring practices in the City Legal Department cause[d]

disharmony or disruption in the workplace.” Aplt. App. Vol. I, at 320.

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 The district court entered judgment against W eaver, and later denied her

motion for post-judgment relief. The district court concluded that (1) W eaver’s

statements disrupted the office and made her difficult to supervise, (2) W eaver

interfered with the office’s hiring processes, (3) her statements w ere inappropriate

in light of the “time, place, and manner” in w hich they were made, and (4) a

balancing of interests tilted in favor of the City Defendants and justified W eaver’s

termination. W eaver appeals, challenging the judgment as a matter of law on her

claim that she w as fired for supporting an opponent of the mayor. She also

challenges the district court’s analysis of her patronage-hiring claim and asserts

that the evidence of disruption was inadequate to justify discharging her.

II. Discussion

A. Retaliation for Supporting a D ifferent Candidate for M ayor

W eaver first argues that the evidence introduced at trial shows M ayor

Chavez decided to discharge her in December 2001, but “deferred” that decision

until July 30, 2002. Accordingly, she contends, the campaign and the discharge

decision were close in time, thus raising an inference of retaliation that the jury

should have decided. W e agree with the district court’s resolution of this claim.

“[P]rotected conduct closely followed by adverse action may justify an

inference of retaliatory motive.” M arx v. Schnuck M kts., Inc., 76 F.3d 324, 329

(10th Cir. 1996). “On the other hand, evidence such as a long delay between the

employee’s speech and challenged conduct, or evidence of intervening events,

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tend to undermine any inference of retaliatory motive and weaken the causal

link.” M aestas v. Segura, 416 F.3d 1182, 1189 (10th Cir. 2005) (citations

omitted). W e review de novo the grant of a judgment as a matter of law.

Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1250 (10th Cir. 2005).

In analyzing this claim, we reject W eaver’s characterization of the events

as “deferring” the firing from December 2001 to July 30, 2002. The evidence

shows that the decision to terminate her employment was made in July 2002 by

the City Attorney, not the M ayor. In addition, the intervening events pertaining

to disruption within the office rebut any inference that she was fired for her

support of a different candidate. Other attorneys in the department— even the

City Attorney— supported the mayor’s political opponents, but they were not

discharged. Finally, despite hearing trial testimony from both M ayor Chavez and

W eaver, no direct or circumstantial evidence was developed to support W eaver’s

claim of a causal connection between her support of a losing candidate and her

termination.

Accordingly, like the district court, we find that “there is no legally

sufficient evidentiary basis for a reasonable jury to find” in W eaver’s favor on

this issue. Lifewise M aster Funding v. Telebank, 374 F.3d 917, 923 (10th Cir.

2004).

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B. Retaliation for Criticism of H iring Practices

W eaver’s second argument is that the district court erred in concluding that

her workplace speech sufficiently interfered with the operation of the City

Attorney’s office to support her termination. W e disagree.

1. Legal Framework

“It is clearly established that a State may not discharge an employee on a

basis that infringes that employee’s constitutionally protected interest in freedom

of speech.” Rankin v. M cPherson, 483 U.S. 378, 383 (1987). “[P]ublic

employees do not surrender all their First A mendment rights by reason of their

employment. Rather, the First Amendment protects a public employee’s right, in

certain circumstances, to speak as a citizen addressing matters of public concern.”

Garcetti v. Ceballos, 126 S. Ct. 1951, 1957 (2006). The State as an employer,

however, has interests in regulating the speech of its employees “that differ

significantly from those it possesses in connection with regulation of the speech

of the citizenry in general.” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

The challenge is “to arrive at a balance between the interests of the [employee],

as a citizen, in commenting upon matters of public concern and the interest of the

State, as an employer, in promoting the efficiency of the public services it

performs through its employees.” Id.

W e apply a four-part test to determine whether a public employer’s actions

unjustifiably infringe on free speech rights. Schrier v. Univ. of Colo., 427 F.3d

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1253, 1262 (10th Cir. 2005). Steps one and two bear on the First Amendment

interests at stake:

First, we must determine w hether the employee’s speech involves a
matter of public concern. If so, we then balance the employee’s
interest in commenting upon matters of public concern against the
interest of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees.

Id. (quoting Finn v. New M exico, 249 F.3d 1241, 1247 (10th Cir. 2001). If the

employee prevails in this analysis, we go on to examine the causal connection

between the speech and the adverse employment action:

Third, if the balance tips in favor of the employee, the employee then must
show that the speech was a substantial factor or a motivating factor in the
detrimental employment decision. Fourth, if the plaintiff establishes that
speech was such a factor, the employer may demonstrate that it would have
taken the same action against the employee even in the absence of the
protected speech.

Id. The first two inquiries are questions of law for the court to decide because

they “concern whether the expression at issue is subject to the protection of the

First Amendment.” Gardetto v. M ason, 100 F.3d 803, 811 (10th Cir. 1996). The

third and fourth steps are questions to be resolved by the jury because they

concern causation. Id.

In this case, only step two is at issue. As to step one, the district court held

that W eaver’s speech touched on matters of public concern, a ruling the City does

not challenge on appeal. See, e.g., Prager v. LaFaver, 180 F.3d 1185, 1190

(10th Cir. 1999) (“Speech which discloses any evidence of corruption,

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impropriety, or other malfeasance on the part of public officials, in terms of

content, clearly concerns matters of public import.”) (quotation omitted).

M oreover, because the City concedes that the reason for W eaver’s discharge was

both her speech about patronage hiring and her interference with the hiring

process, and because the City does not claim it would have fired W eaver even if

she had not engaged in that speech, steps three and four are also not at issue.

Therefore, W eaver’s appeal rests on our disposition with regard to step two.

The step two balancing test is a question for the court. In conducting the

required balancing of interests, the court examines the manner, time, and place of

the speech, as well as the context in which the dispute arose. Connick v. M yers,

461 U.S. 138, 152-53 (1983). Also relevant is the disruption caused by the

employee’s speech, namely, “whether the statement impairs discipline by

superiors or harmony among co-workers, has a detrimental impact on close

working relationships for which personal loyalty and confidence are necessary, or

impedes the performance of the speaker’s duties or interferes with the regular

operation of the enterprise.” Rankin, 483 U.S. at 388. The burden is on the

employer to establish such disruptive effects. Dill v. City of Edmond, 155 F.3d

1193, 1204 n.5 (10th Cir. 1998). “W e w ill defer to a public employer’s

reasonable predictions of disruption, but those [predictions] must be supported by

the presentation of specific evidence. The employer cannot satisfy its burden by

making purely speculative allegations.” Jantzen v. Hawkins, 188 F.3d 1247, 1257

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(10th Cir. 1999) (quotation omitted). A government employer is not required “to

allow events to unfold to the extent that the disruption of the office and the

destruction of working relationships is manifest before taking action.” Connick,

461 U.S. at 152.

2. Role of Trial Court and Jury at the Step Two Balancing of Interests

A preliminary question in this case involves the relative role of the trial

court and the jury in determining the balancing of interests required at step two.

The trial court specifically asked the jury to make a finding whether W eaver’s

conduct was actually disruptive to the City Attorney’s Office. The jury

concluded she was. 3 Although the court directed the jury through a special

verdict form to make this finding, the court itself ultimately conducted the

required balancing in ruling for the City at the close of the evidence. The City

argues that the jury’s finding should be reviewed only for clear error. W eaver, on

the other hand, maintains that the district court erred in submitting any fact

question to the jury because the balancing is entirely a question of law for the

court.

It is well-settled that the balancing assessment must be performed by the

court, not the jury. See Gardetto, 100 F.3d at 811; see also Connick, 461 U.S. at

3
The special verdict form asked: “Did Plaintiff’s criticism of what she
perceived to be politically motivated hiring practices in the city Legal Department
cause disharmony or disruption in the workplace?” Aplt. A pp. Vol. I, at 320.
The jury responded, “Yes.” Id.

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148 n.7 (noting that “[t]he inquiry into the protected status of speech is one of

law, not fact”). The circuits are split, however, as to whether the jury has any

role in the Pickering balancing, especially where the application of the balancing

might turn on disputed questions of fact. See Lytle v. City of Haysville, 138 F.3d

857, 864 n.1 (10th Cir. 1998) (recognizing the circuit split but not reaching the

issue because appellant failed to allege that any underlying factual disputes

affected the Pickering balancing). Com pare Johnson v. Ganim, 342 F.3d 105,

114-15 (2d Cir. 2003) (stating “factual disputes pertaining to the potential for

disruption and defendants’ motivations in suspending and terminating plaintiff”

are issues which “would properly be regarded as a question of fact, to be

answered by the jury prior to the district court’s application of the Pickering

balancing test”) (quotations omitted), and Belk v. City of Eldon, 228 F.3d 872,

881 (8th Cir. 2000) (“Although the balancing of interests is a matter of law for

the district court, the underlying factual questions should be submitted to the jury,

generally through interrogatories or a special verdict form.”), with Joyner v.

Lancaster, 815 F.2d 20, 23 (4th Cir. 1987) (holding “the advisory jury had no role

to play” in resolving the question of “constitutional law for the court”).

The Supreme Court has not addressed the role of the jury specifically in the

Pickering/Connick context. It has in other First Amendment contexts, however.

In Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 501

(1984), for example, the Court recognized that determinations of historical fact

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may be left to the judge or jury, but the “rule of independent review ” assigns to

the court the job of evaluating the ultimate constitutional significance of the facts.

Although superficially simple, the distinction between “finding facts” and

“applying law” can be quite elusive. See Miller v. Fenton, 474 U.S. 104, 113

(1985) (noting that the “appropriate methodology for distinguishing questions of

fact from questions of law has been, to say the least, elusive”). The former is a

matter for the jury or the judge; the latter solely for the court. But despite the

“vexing nature” of the distinction, courts are nonetheless required to separate fact

from law to undertake their role in assessing the effect on rights of free

expression. Bose, 466 U.S. at 501. “An issue does not lose its factual character,”

however, “merely because its resolution is dispositive of the ultimate

constitutional question.” M iller, 474 U.S. at 113.

The assignment of fact questions to a jury is not susceptible to a bright line

rule. And even when a question lends itself to jury resolution, the court is often

still called on to resolve a “mixed” question of law and fact. “Perhaps much of

the difficulty in this area stems from the practical truth that the decision to label

an issue a ‘question of law,’ a ‘question of fact,’ or a ‘mixed question of law and

fact’ is sometimes as much a matter of allocation as it is of analysis.” Id. at 115

(citing Henry P. M onaghan, Constitutional Fact Review, 85 Colum.L.Rev. 229,

237 (1985)). The district court, however, is generally in the best position to

assess whether the inquiry involves an underlying question of historical fact,

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which often turns on judgments of credibility of witnesses or evaluation of

demeanor. Those facts as determined by the jury can then be employed in the

ultimate constitutional inquiry conducted by the court.

A ccordingly, in the context of step two balancing, the decision to submit

questions of fact to the jury is within the sound discretion of the district court.

W hile the court must ultimately undertake the Pickering/Connick analysis

itself— (1) the manner, time, and place of the speech, (2) the context of the

speech, and the (3) the effect of any disruption caused by the speech— many of

these inquiries may be fact-intensive. 4 W here a district court finds that its

balancing rests on a question of historical fact that it reasonably believes the jury

is capable of resolving, it can submit that issue to the jury, so long as it performs

the final assessment of constitutionality.

Applying these principles here, we find no error. The factually-intensive

question of disruption lent itself to jury resolution. This is so particularly in the

context of this case, where the parties disputed the effect of W eaver’s speech on

the w orkplace. The court reasonably concluded it could be informed by the jury’s

finding on this issue. After receiving the jury’s finding, the district court went on

4
W e can imagine, for example, relevant questions underlying the balancing
of interests that might appropriately be submitted to a jury: Did an employee
actually make a contested statement?; Did the employer actually warn the
employee or mete out discipline?; W hat was the content of the speech? These
questions may call for fact finding, either by a court or by a jury.

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to make its own independent balancing assessment of workplace efficiency under

Pickering/Connick.

In sum, there was no impermissible delegation to the jury of the court’s

role in making a independent determination of the ultimate constitutional

question. The district court did not err by submitting questions of disputed fact to

the jury through the special verdict form.

3. Balancing the Interests

On appeal, we consider de novo whether the district court erred in

concluding the City’s interests outw eighed W eaver’s under the facts of this case.

See Johnsen v. Indep. Sch. Dist. No. 3, 891 F.2d 1485, 1489 (10th Cir. 1989).

W e agree with the district court’s assessment.

W e start with a summary of the testimony at trial. In the judgment of

W eaver’s supervisors, her speech was insubordinate and disruptive for a number

of reasons: (1) her remarks about patronage hiring maliciously attempted to

discredit job applicants and reflected poorly on future colleagues, (2) her

telephone call with Ben Chavez’s then-supervisor breached the confidentiality

requested by Chavez and conveyed an unprofessional approach by the city

attorneys’ office to hiring attorneys, (3) she communicated internal hiring matters

to outside attorney candidates contrary to office procedure, and (4) her continued

criticism of the Ben Chavez hiring defied the warning from her immediate

supervisor to stop.

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 Even though we defer to an employer’s “reasonable predictions of

disruption” to support a balancing of interests, even before actual disruption

occurs, Jantzen, 188 F.3d at 1257, we need not rely on predictions in this case.

Both the trial court and the jury concluded the evidence supported a determination

of actual significant workplace disruption as a result of W eaver’s conduct.

First, W eaver’s disregard of warnings from her supervisors to stop

criticizing potential hires, as well as her continual criticism of what she perceived

as patronage hiring, impaired discipline by her superiors. See Rankin, 483 U.S.

at 388. W eaver w as asked to stop criticizing her current and future colleagues.

She would not. Her supervisors were not required to tolerate open

insubordination, nor were they required to w ait for the situation to w orsen before

responding. See Connick, 461 U.S. at 152. W eaver had numerous avenues to

express her opinions, but one avenue that was not open was to flout a reasonable

request by a supervisor that she desist in impairing workplace morale through her

comments.

Second, her disregard of her supervisor’s requests are especially troubling

given her breach of office confidentiality regarding hiring. W eaver w as not a part

of the office hiring process, yet she directly contacted an employer of a

prospective attorney candidate without authorization. She then passed along the

employment information she learned to a friend outside the office. Regardless of

the merits of her conversations, such a practice undoubtedly interferes with an

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orderly recruiting and hiring process. This is especially true for a

well-functioning public law office, where a “wide degree of deference” is

appropriate given that a “close working relationship” between law yers is

“essential to fulfilling public responsibilities.” Id. at 151-52. As the City

Attorney testified, he objected to W eaver’s “interfering in the selection of

attorneys.” Aplt. App. Vol. II, at 473. He did not mind employees

recommending their friends for positions in the department. Id. at 474. “But to

subvert a potential colleague is what [he] found offensive.” Id.

Third, the time, place, and manner of W eaver’s speech weighs against her

interests. “W hen a government employee personally confronts his immediate

superior, the employing agency’s institutional efficiency may be threatened not

only by the content of the employee’s message but also by the manner, time, and

place in which it is delivered.” Connick, 461 U.S. at 153. W eaver exercised her

rights to speech at the office, she communicated her criticism to outsiders, and

she continued to complain even after her supervisors told her to stop. These

circumstances support the district court’s conclusion that W eaver’s speech

disrupted the functioning of the office. As a result, her conduct had a

“detrimental impact on close working relationships for which personal loyalty and

confidence are necessary.” Rankin, 483 U.S. at 388.

Fourth, the evidence shows W eaver’s conduct “impede[d] the performance

of [her] duties or interfere[d] with the regular operation of the enterprise.” Id.

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Her comments were either designed to or had the effect of undermining the

morale of the office, and created undeserved skepticism regarding the abilities of

her fellow attorneys. Her comments to a friend outside of the office also could be

construed as an attempt to compromise the hiring process, and, in any event, was

a serious breach of confidence from an assistant city attorney in whom substantial

client confidences are entrusted.

Therefore, under the totality of the evidence, we agree with the district

court that the balance of interests weighs in favor of the government employer’s

“interest in the effective and efficient fulfillment of its responsibilities to the

public.” Id. Consequently, we hold that the City’s interests outweigh W eaver’s

interests, and her speech was not entitled to First Amendment protection for

purposes of her retaliatory discharge claim.

III. Conclusion

Accordingly, for the reasons discussed above, the judgment of the district

court is AFFIR ME D.

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