Dixon v. Kirkpatrick

FILED
United States Court of Appeals
Tenth Circuit

January 8, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RAJEANNA DIXON,

Plaintiff-Appellee,
v. No. 07-6201
CATHY KIRKPATRICK, in her
individual capacity,

Defendant-Appellant,

OKLAHOMA BOARD OF
VETERINARY MEDICAL
EXAMINERS,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 06-CV-1003-M)

Jami J. Fenner, Lester, Loving & Davies, P.C., Edmond, Oklahoma, for Plaintiff-
Appellee.

M. Daniel Weitman, Assistant Attorney General (Kindanne C. Jones, with him on
the brief), Oklahoma City, Oklahoma, for Defendant-Appellant.

Before MURPHY, McKAY and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.
 Rajeanna Dixon, an investigative assistant for the Oklahoma Board of

Veterinary and Medical Examiners (“OBVME”), lost her job partly because she

discussed OBVME’s investigation of a dogfighting ring with a member of the

veterinarian trade association. She brought a § 1983 action against OBVME and

her supervisor, Cathy Kirkpatrick, alleging that she had been fired in violation of

her constitutional right to free speech. Ms. Kirkpatrick and OBVME moved for

summary judgment; Ms. Kirkpatrick claimed she was entitled to qualified

immunity. The district court denied their motion, and Ms. Kirkpatrick,

individually, now appeals the denial of qualified immunity. We reverse the

district court on the ground that an investigative agency is within its rights as an

employer to discipline an employee with access to confidential materials for

discussing details of an agency investigation with an outside party.

I. BACKGROUND

The OBVME is the agency charged under Oklahoma law with regulating

the practice of veterinary medicine in the State. 59 Okla. Stat. § 698.3.

Defendant-Appellant Cathy Kirkpatrick is its Executive Director. During the

relevant period, OBVME had four employees, one of whom was Plaintiff-

Appellee Raejeanna Dixon. As an “investigative assistant,” Ms. Dixon’s job was

to assist the Board’s investigator, Dale Fullerton, with “clerical and inspection

duties” by typing reports, documents, and transcripts for investigations. Some of

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her job duties entailed access to confidential materials, including information

concerning ongoing investigations. Although there is no evidence of a written

confidentiality policy applicable to Ms. Dixon’s position, 1 both Ms. Dixon and

her employers later testified that Ms. Dixon was not supposed to divulge

information about ongoing investigations to outside parties. The following is an

excerpt from Ms. Dixon’s deposition:

Q. Do you believe that the board did not want its employees to disclose
information to anyone outside of the office regarding an investigation?

A. Yes.

Q. Okay. Was it common knowledge that employees were not to discuss
information regarding investigations conducted by board employees with
those outside the office?

A. Well, they were discussed with our AG representative [i.e., the
agency’s attorney].

*****

Q. What about outside of [the AG representative], do you think the board
wanted its employees to discuss investigation information with anyone else
outside the agency?

1
The appellant points to a statutory policy prohibiting OBVME employees
from disclosing information about ongoing investigations, stating that it was
adopted by the OBVME board in January, 2004. Appellant’s Br. 3. The record,
however, indicates that in January 2004 the Board voted to recommend this
statutory change to the legislature; the change was not enacted until November,
2004. It was therefore not applicable at the time of Ms. Dixon’s actions or
termination. In any event, this policy was addressed to the agency as a whole,
and was designed to change the agency’s practices regarding inquiries about
veterinarians who were undergoing investigation.

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 [Objection to the form of the question.]

A. Yes.

Q. You said yes. You believe that the board wanted you to discuss
investigation information with people outside the agency?

A. No.

R. 81–82. The chairman of OBVME stated that an employee in Ms. Dixon’s

position “should [not] be talking . . . about investigations that are going on,” and

that “any conversation about investigations is too much.” R. 409. Ms.

Kirkpatrick similarly testified that “[j]ust talking about a case outside of the

office where we know we’re not supposed to be talking about cases that are

confidential, you don’t do that.” R. 340. See also id. at 335 (Kirkpatrick dep.)

(stating that if Ms. Dixon received an inquiry about an investigation she should

refer the questioner to her as Executive Director); id. at 342 (stating that the

board had a policy applicable to Ms. Dixon’s position “not to speak about

investigations outside the office” even if there had already been reports in the

media); id. at 380 (testimony of another board member that it is “prudent” for

employees to refrain from discussing “vet board matters” even if they are not

“confidential,” but that this is not a “requirement”).

In February 2003, OBVME began an investigation into an illegal

dogfighting ring. Ms. Dixon objected to the use of OBVME funds on the

investigation because it was not, she believed, OBVME’s mission “to be out there

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busting John Doe for fighting dogs or selling dope or anything else.” Ms. Dixon

had expressed to her supervisor, Cathy Kirkpatrick, that OBVME was getting

“involved in things that were not a part of what the veterinary board was designed

to do.” She also had complained to the investigator who was working on the case,

Dale Fullerton.

In May 2004, the dogfighting investigation ended in a bust. The bust was

reported in a prominent local newspaper over two days. One story stated that

during the investigation the “Board of Veterinary Medical Examiners was brought

in” to assist the Oklahoma Bureau of Narcotics. “Eventually,” the story said,

“two undercover state narcotics agents and one from the veterinary board

infiltrated” the dogfighting “underworld.” David Zizzo, Dogfighters Work Hard

to Maintain Secret Community, The Oklahoman, May 24, 2007, at 1A. See also

Tony Thornton, Raids Net Packs of Fighting Dogs, The Oklahoman, May 26,

2004, at 1A (“Investigating agencies included the Oklahoma State Board of

Veterinary Medicine and the Oklahoma and Hughes County Sheriff’s

Departments.”). Ms. Kirkpatrick was quoted in the newspaper accounts. The

stories did not mention the involvement of any veterinarian in the investigation or

the bust. There was a second bust, later, in July, which was part of the same

investigation.

In late May, shortly after the second article appeared in the newspaper, Ms.

Dixon took her pets to her personal veterinarian, Dr. James Stock, to be

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vaccinated. Dr. Stock was a member of the “legislative committee” of the

Oklahoma Veterinary Medical Association, a private trade organization for

veterinarians. According to Dr. Stock’s account of the visit, he “quizzed” Ms.

Dixon about the dogfighting investigation, in particular why OBVME was

involved in it if no veterinarians were implicated in the dogfighting ring. R. 271,

272 (Stock dep.). Ms. Dixon answered: “Well that’s kind of what I’d like to

know, too.” Id. at 272. She added that there were “a lot of things” she wanted to

discuss with Dr. Stock. Dr. Stock suggested that they could meet some other

time. Id. Dr. Stock stated that Ms. Dixon had “led [him] to believe” that no

veterinarian was involved in the investigation. Id. at 273, 275. Ms. Dixon denies

that she said anything misleading, and that, to the contrary, she “made it clear that

while there was a veterinarian against whom a complaint had been made, the

investigator had not confined his investigation to the veterinarian or to my

knowledge, investigated the veterinarian at all.” R. 269 (Dixon aff.).

Dr. Stock said later that he asked Ms. Dixon about the investigation

because he felt that as a member of the legislative committee he could take action

if the “vet board was doing something that [he] felt was contrary to [his]

profession.” Id. at 276. According to his understanding of the OBVME, “they

regulate veterinarians, good or bad, and if no veterinarians are involved, then no

matter what’s going on, they really shouldn’t necessarily be involved” in an

investigation of dogfighting. Id. at 273. There was “no problem whatsoever”

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with such an investigation if a veterinarian was involved, even if ultimately no

veterinarian were found to be guilty. Id.

Ms. Dixon and Dr. Stock met again in June, this time at Ms. Dixon’s

instigation. She told Dr. Stock that she believed that the dogfighting

investigation was “outside the scope of the Veterinary Practice Act and Mission

Statement,” and that funds were being wasted on the investigation. Dr. Stock

testified that in this conversation, as in the first, Ms. Dixon led him to believe that

there was no veterinarian involved in the dogfighting scheme. Id. at 201. Ms.

Dixon also made numerous complaints about the investigator, Mr. Fullerton,

including that he exceeded the speed limit in state-owned vehicles, carried a

sidearm when he went in to talk to veterinarians, and that he had made racist and

sexist remarks. She described Mr. Fullerton as “like a little Rambo,” and said

that he “needed to stick to the business of the veterinary board and not [be] out

there trying to be the great cop of Oklahoma and [a]ffect all things.” Id. at 350.

She also complained about the way Ms. Kirkpatrick was administering the office. 2

Id. at 201. At this time, Ms. Dixon apparently believed that the dogfighting

investigation was over, but in fact the investigation led to a second bust the

following month. R. 354 (Dixon dep.).

2
At one meeting with Dr. Stock, Ms. Dixon apparently showed him
documents about a pending investigation against an entity called “ProCon,” a
drug pharmaceutical distributor. R. 273–74.

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 Ms. Dixon later said that she told these things to Dr. Stock because she

“hoped that he would go to the legislative committee and explain to them that the

investigator was out of control.” Id. at 359 (Dixon dep.). She believed that

problems of the sort she had discussed would continue as long as the investigator

continued to have police powers. Id. at 203-04.

Dr. Stock did get the attention of the Board, or at least of Ms. Kirkpatrick.

Ms. Kirkpatrick attended a meeting of the legislative committee of the Oklahoma

Veterinary Medical Association. Dr. Stock asked her: “Can you tell me why the

Veterinary Board is involved in the dog fighting investigation?” Id. at 293, 163.

(Kirkpatrick dep.). (According to Dr. Stock, his question was “Are there any –

any vets?” Id. at 204 (Stock dep.)). Ms. Kirkpatrick described his question as

“pointed.” Id. at 163, 293 (Kirkpatrick dep.). Ms. Kirkpatrick answered that

“there was a veterinarian and there’s others — other veterinarians implicated.”

Id. at 163. Dr. Stock appeared satisfied with her answer.

Dr. Stock’s question gave Ms. Kirkpatrick the “big suspicion” that Ms.

Dixon had “spoken to an individual outside of the office regarding

investigations.” R. 293, 163. Ms. Kirkpatrick asked Dr. Lee Denny, a

veterinarian who is a member of the OBVME board, to contact Dr. Stock and ask

about his conversations with Ms. Dixon. Dr. Stock confirmed that Ms. Dixon

(whom Dr. Stock referred to as “our secretary at the board office”) had discussed

the investigation with him. Id. at 376 (Denny dep.). Dr. Denny relayed this

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answer to Ms. Kirkpatrick. Id. at 335 (Kirkpatrick dep.). With her suspicions

confirmed that Ms. Dixon was the source of Dr. Stock’s misinformation about the

investigation, and after giving Ms. Dixon time off to consider whether to

reconsider her attitude toward her work, id. at 339, Ms. Kirkpatrick terminated

Ms. Dixon on July 14.

Ms. Dixon’s termination letter apparently did not contain a statement of

reasons for her dismissal. In her appellate brief, Ms. Kirkpatrick says Ms. Dixon

was fired “for a plethora of reasons related to her work performance and

disruption to the office and its mission.” Appellant’s Br. 6. Ms. Kirkpatrick does

not deny that one of those reasons was Ms. Dixon’s conversations with Dr. Stock.

In her deposition, Ms. Kirkpatrick affirmed that one reason Ms. Dixon was

discharged was “her speaking to Dr. Stock about the dog-fighting investigation.”

R. 331. Later, in the context of opposing Ms. Dixon’s claim for unemployment

compensation, OBVME stated that the reasons for the discharge were

“insubordination and divulging information about an investigation.” Id. There is

evidence that Ms. Kirkpatrick was not aware that Ms. Dixon had divulged any

“specifics . . . regarding the dog-fighting investigation that wasn’t already in the

newspaper,” though she suspected that Ms. Dixon had conveyed additional

information about the conduct of the investigation that “undermin[ed] the

investigator.” R. 335-36, 340 (Kirkpatrick dep.) Indeed, because Ms. Kirkpatrick

was apparently unaware of the details of Ms. Dixon’s conversation with Dr. Stock

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at the time of the termination, the termination decision could not have been based

on the disclosure of specific confidential information.

Ms. Dixon filed suit in state court, alleging that she had been fired “in

retaliation and in response to [her] speaking as a citizen on matters of public

concern by reporting wrongdoing at OBVME.” After extensive discovery, the

state case was dismissed by stipulation of the parties, and Ms. Dixon refiled in

federal district court. The parties stipulated that they would be bound by the

discovery responses provided in the state court action. Ms. Kirkpatrick and

OBVME moved for summary judgment, arguing that Ms. Dixon was not speaking

on a matter of “public concern,” but that if she was, OBVME was justified in

regulating her speech. Ms. Kirkpatrick also contended that she was entitled to

qualified immunity because the law was not clearly established at the time of Ms.

Dixon’s termination. The district court denied the motion for summary judgment

on all three issues.

II. STANDARD OF REVIEW OF INTERLOCUTORY APPEAL OF
DENIAL OF SUMMARY JUDGMENT IN A
QUALIFIED IMMUNITY CASE

“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). When a

party has been denied qualified immunity, that denial can be appealed prior to a

final judgment only to the extent that the appeal is based on an issue of law.

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); see also Shrum v. City of Coweta,

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449 F.3d 1132, 1137 (10th Cir. 2006) (orders denying qualified immunity before

trial are appealable only if they involve “abstract issues of law”). A district

court’s determination that the record raises a “genuine issue of material fact,”

precluding summary judgment in favor of the defendants, is not appealable even

in a qualified immunity case. Johnson v. Jones, 515 U.S. 304, 313 (1995). Thus,

in deciding these issues of law, we “consider only whether the district court erred

in assessing the legal significance of the conduct that the district court deemed

sufficient supported for purposes of summary judgment.” Kinney v. Weaver, 367

F.3d 337, 348 (5th Cir. 2004). Unlike other appeals from summary judgment

decisions (which are, perforce, appeals of grants rather than denials), the

appellate court in an interlocutory appeal regarding qualified immunity “can

simply take, as given, the facts that the district court assumed when it denied

summary judgment for [a] (purely legal) reason.” Johnson, 515 U.S. 319. It is

not the job of the appellate court to determine whether the record supports the

district court’s factual assumptions. Kinney, 367 F.3d at 348. 3

III. APPLYING THE GARCETTI/PICKERING TEST

The test for determining whether Ms. Dixon was denied her constitutional

rights by being terminated for speaking on matters of public concern is the

Pickering test, now modified by the Supreme Court’s decision in Garcetti v.

3
The Appellant is therefore incorrect to state that we must “conduct a de
novo review of the record” to determine whether there were disputed issues of
material fact. Appellant’s Reply Br. 2.

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Ceballos, 547 U.S. 410 (2006). See Brammer-Hoelter v. Twin Peaks Charter

Academy, 492 F.3d 1192, 1202 (10th Cir. 2007) (describing what we now call the

“‘Garcetti/Pickering’ analysis”); see also Pickering v. Bd. of Educ., 391 U.S. 563,

568 (1968). The test comprises five elements, called “prongs”: (1) whether the

speech was made pursuant to an employee’s official duties; (2) whether the

speech was on a matter of public concern; (3) whether the government’s interests,

as employer, in promoting the efficiency of the public service are sufficient to

outweigh the plaintiff’s free speech interests; (4) whether the protected speech

was a motivating factor in the adverse employment action; and (5) whether the

defendant would have reached the same employment decision in the absence of

the protected conduct. Id. at 1202–03. The first three “prongs” are said to be

issues of law to be decided by the court; the last two are factual issues to be

decided by the factfinder. Id. at 1203.

A. Undisputed Issues

The first, fourth, and fifth elements of the Garcetti/Pickering test are not

challenged by the appellant. The OBVME and Ms. Kirkpatrick conceded below

that “it was not a part of [Ms. Dixon’s] duties to opine on the used [sic] of

OBVME funds in investigations or discuss ongoing investigations.” The first

element of the test, which was added by Garcetti, is therefore deemed satisfied

for purposes of this appeal.

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 Ms. Kirkpatrick devotes many pages of her appellate brief to summarizing

facts in the record regarding Ms. Dixon’s allegedly poor work performance.

Appellant’s Br. 4, 5–6, 19. According to the appellant, as a result of Ms. Dixon’s

belief that OBVME should not have become involved in the dogfighting

investigation, Ms. Dixon intentionally performed lower quality work and became

uncooperative and disruptive. These facts might well justify the plaintiff’s

termination under the fourth or fifth element in the test, but the defendants did not

argue this either in support of their summary judgment motion in district court or

in the legal argument section of their brief in this court. For purposes of this

appeal, therefore, we will assume that Ms. Dixon was terminated because of her

speech.

B. Public Concern

There is some controversy about whether the “matter of public concern”

element of the test was conceded below. In her Request for Admissions, the

plaintiff asked the defendants to “Admit Plaintiff spoke to Cathy Kirkpatrick and

James Stock, D.V.M., on matters of public concern.” After objecting to the form

of the request, the defendants responded: “it is admitted, upon information and

belief, that Plaintiff did speak, on occasion, to those persons on matters of ‘public

concern.’” R. 209. In their motion for summary judgment, however, the

defendants denied the admission, noting that they had also stated that the request

for an admission on this point was “vague, ambiguous, susceptible to

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interpretation and undefined in terms of scope, date or subject matter.” They

added: “To the extent it holds any significance, Defendant OBVME supplements

the response to ‘Denied.’”

Both Oklahoma and federal rules of civil procedure provide that “[a]ny

matter admitted under this section is conclusively established unless the court on

motion permits withdrawal or amendment of the admission.” 12 Okla. Stat. §

3236(B). Cf. Fed. R. Civ. P. 36(b). There is no indication that OBVME or Ms.

Dixon ever moved to withdraw or amend their original admission. Ms. Dixon

contends that this precludes their challenge to the denial of summary judgment on

this issue.

We agree that the defendants are bound by their admission, but regard the

admission as limited in practical effect. Defendants admitted that Ms. Dixon

spoke “on occasion” to Ms. Kirkpatrick and Dr. Stock on matters of public

concern, but they were not asked and did not volunteer which statements those

were. We do not regard the admission as conclusive with respect to each and

every statement Ms. Dixon made to these two persons, but only to preclude the

appellant from arguing that none of Ms. Dixon’s speech fell into that

constitutionally protected category.

The speech involved in this case may be divided into three categories: (1)

Ms. Dixon’s internal complaints to Ms. Kirkpatrick and others about the

investigator’s conduct and other matters, (2) her complaint to Dr. Stock that the

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dogfighting investigation was unauthorized and improper, and (3) her complaints

to Dr. Stock about the way Mr. Fullerton and Ms. Kirkpatrick carried out their

responsibilities. In rejecting the defendants’ motion for summary judgment on

this issue, the district court did not distinguish among these various categories of

speech. The court held that “improper expenditures of public funds, illegal

behavior by OBVME employees including speeding in state-owned vehicles, and

discriminatory practices” were matters of public concern. “Improper expenditures

of public funds” is apparently a reference to Ms. Dixon’s claim that the

dogfighting investigation was beyond its authority. See Appellee’s Br. 17. 4 We

conclude that Ms. Dixon’s conversations with Dr. Stock regarding the supposedly

improper use of OBVME resources to investigate the dogfighting ring involved

matters of public concern, but that none of the other subjects raised in her

conversations were entitled to constitutional protection under the second prong of

Garcetti/Pickering.

The appellant argues that Ms. Dixon’s “disagree[ment] with the

investigation” and “disclos[ure of] its existence to one veterinarian” outside of

any public forum or “any forum which could effect change in government policy”

amounted to nothing more than “the airing of a work related grievance.” We find

this argument unpersuasive. OBVME’s involvement in the dogfighting

4
It also may refer to an incident in which Ms. Kirkpatrick allegedly
misidentified a $13 work-related expense on a reimbursement form.

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investigation was the subject of extensive reporting in a major local daily

newspaper. Dr. Stock, indeed, initiated his conversation with Ms. Dixon based

on his reading of a story in the newspaper. Moreover, Dr. Stock was not just “one

veterinarian”; he was a member of the legislative committee of the veterinary

professional association, which engaged in public advocacy on the subject of

veterinary regulation and was concerned about the investigation. Both Ms. Dixon

and Dr. Stock testified that they engaged in the conversation with a view to his

raising the issue with the authorities. Armed with the information he received

from Ms. Dixon, Dr. Stock confronted the director of OBVME at a legislative

committee meeting and demanded an explanation. That is sufficient to support

the district court’s legal conclusion that Ms. Dixon’s speech on this subject was a

matter of public concern.

No such argument can be made about Ms. Dixon’s complaints about Mr.

Fullerton’s conduct and Ms. Kirkpatrick’s management style. These were mostly

trivial in nature. They included such things as manner of dress, use of tobacco,

driving habits, temperament, a mislabeled $13 expense charge, and so forth.

Serious complaints about discrimination can certainly be a matter of public

concern, but the record reveals discussion of nothing more than a few stray

comments. None of the issues other than the dogfighting investigation generated

any press coverage, nor were they related to any legislative concerns. Dr. Stock

repeatedly stated in his deposition that his only concern was whether OBVME

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was conducting an investigation in the absence of any involvement by a

veterinarian. When he learned, contrary to the impression he had received from

Ms. Dixon, that veterinarians had in fact been involved in the dogfighting

operation, Dr. Stock was satisfied and did not think there was any other problem

with the investigation. When Ms. Dixon asked him whether he had brought up

Mr. Fullerton and “how things are being run there,” Dr. Stock told her, “I don’t

really care how that’s being run. I didn’t feel like that was any of my business to

tell them how to run their business.” R. 275-76 (Stock dep.).

Whether speech is a matter of public concern is a legal issue, to be

determined by the district court as a matter of law and reviewed de novo by the

court of appeals. We conclude that, other than the issue of the dogfighting

investigation, Ms. Dixon’s complaints about individual co-workers and personnel

issues were internal matters not of public concern. See, e.g., Curtis v. Okla. City

Pub. Sch. Bd. of Educ., 147 F.3d 1200, 1212 (10th Cir. 1998).

C. Disruption

The third prong of the Garcetti/Pickering test is the nub of this case. After

determining that the employee’s speech is protected (which we have just done),

we go on—in step three—to decide “whether the employee’s interest in

commenting on the issue outweighs the interest of the state as employer.”

Brammer-Hoelter, 492 F.3d at 1203 (quoting Casey v. W. Las Vegas Indep. Sch.

Dist., 473 F.3d 1323, 1327 (10th Cir. 2007)). Although this element is framed as

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a “balancing” test, this Court has held that First Amendment rights “are protected

‘unless the employer shows that some restriction is necessary to prevent the

disruption of official functions or to insure effective performance by the

employee.’” Gardetto v. Mason, 100 F.3d 803, 815 (10th Cir. 1996) (quoting

Wren v. Spurlock, 798 F.2d 1313, 1318 (10th Cir. 1986), in turn quoting Childers

v. Ind. Sch. Dist. No. 1, 676 F.2d 1338, 1341 (10th Cir. 1982)); see Garcetti, 547

US at 418 (“The question becomes whether the relevant government entity had an

adequate justification for treating the employee differently from any other

member of the general public.”); Brammer-Hoelter, 492 F.3d at 1207 (“the

question is whether the employer ‘has an efficiency interest which would justify it

in restricting the particular speech at issue’”, (quoting Cragg v. City of

Osawatomie, 143 F.3d 1343, 1346 (9th Cir. 1998))). In other words, unless the

government employer can show that the termination was based on legitimate

reasons grounded in the efficient conduct of public business, there is no need to

proceed to balancing, and the First Amendment interest of the plaintiff prevails.

This Court has explained that in assessing this third prong, a court should

generally consider “whether the [speech] impairs discipline . . ., has a detrimental

impact on close working relationships . . ., or impedes the performance of the

speaker’s duties or interferes with the regular operation of the enterprise.”

Gardetto, 100 F.3d at 815. We have cautioned that the employer “cannot rely on

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purely speculative allegations that certain statements caused or will cause

disruption.” Id.

Citing Gardetto, but without further explanation, the district court denied

summary judgment to the defendants on the ground that they “have failed to

present sufficient evidence of actual disruption to outweigh Plaintiff’s interest in

her speech.” Dist. Ct. Op. at 5. It is difficult to know, from this brief holding, to

what evidence the district court is referring and therefore what “pure issue of

law” we are asked to address in this interlocutory appeal. See Johnson, 515 U.S.

at 319. The record in this case is lengthy. It contains a great deal of evidence,

some of it conflicting, about the permissibility of a person in Ms. Dixon’s

position divulging information regarding current or ongoing investigations. Both

parties pointed to record evidence relevant to these issues in their summary

judgment briefs. We do not know whether to interpret the district court’s cryptic

ruling as a statement of the court’s factual assumptions (i.e., that the defendants

had not carried their burden to show undisputed evidence in support of their

position) or as a statement of the court’s legal conclusion (i.e., that given the facts

established by the record, OBVME’s reasons for discharging Ms. Dixon were

illegitimate).

It would be helpful in Garcetti/Pickering cases, when the third prong is

contested, for the district court to insist that the defendants identify precisely

what interests in the efficiency of the public service they believe were served by

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the termination, and for the district court to state in any order denying summary

judgment on this ground whether its ruling is based on a factual insufficiency in

the record or on a legal conclusion regarding the legitimacy of the asserted

reasons for the termination. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 n.6 (1986). Lacking any such clarity in this case, we are forced to delve

more deeply into the record than should be necessary in an interlocutory appeal of

this sort. 5 See Johnson, 515 U.S. at 319 (where the district court does not state

the facts upon which it based its decision, “a court of appeals may have to

undertake a cumbersome review of the record to determine what facts the district

court, in the light most favorable to the nonmoving party, likely assumed”).

The appellant argues primarily 6 that Ms. Dixon was discharged because, as

an employee in an investigative office with access to confidential information,

she should not have divulged information about an ongoing investigation to

outside parties. Ms. Dixon’s response rests primarily on the claim that although

5
We have examined all portions of the record cited by the parties. We
have not undertaken a de novo review of the entire record.
6
The appellant also argues that “Plaintiff’s conduct . . . was disruptive,”
referring to her refusal to work and disrespectful treatment of co-workers.
Appellant’s Br. 19. We agree with the appellee that this is essentially an
argument under the fifth prong of Garcetti/Pickering that she would have been
fired for her poor work performance even apart from her protected speech. The
defendants did not present that argument to the district court and it is not before
us on this appeal. See Cragg, 143 F.3d at 1347. Moreover, the appellee claims
that the facts regarding her disruptive behavior are disputed. Appellee’s Br. 25
n.11.

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she discussed the investigation with an outside party, she did not divulge any

information that was confidential and had not already been exposed in the press.

The appellant notes that even if there is no evidence that Ms. Dixon revealed

specific information that was confidential, she was apparently a source of

“misinformation”: she led Dr. Stock to believe, falsely, that no veterinarians were

involved in the dogfighting investigation, thus creating the impression that the

investigation was illegitimate. Ms. Kirkpatrick also argues that it was

constitutionally permissible for the agency to fire an employee for discussing an

ongoing investigation with an outside party even if there was no evidence of

specific confidential disclosures.

We agree with the appellant on both points. If a government employer is

entitled to dismiss an employee for divulging accurate confidential information

not otherwise known to the public, the same must be true of false information.

Certainly, the conveyance of false information would “interfere[] with the regular

operation of the enterprise.” Gardetto, 100 F.3d at 815. Ms. Dixon’s indiscretion

led an influential member of the professional association regulated by the

OBVME to suspect agency wrongdoing, and to raise those suspicions at a meeting

of his legislative committee. In this instance, the Executive Director was able to

dispel his concerns at an early stage; but had the circumstances been different or

Dr. Stock been less cautious, the damage to the investigation and to OBVME’s

reputation would have been more serious.

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 Citing to her own affidavit, the plaintiff responds that it is a disputed issue

of fact whether Ms. Dixon actually told Dr. Stock that no veterinarians were

involved in the dogfighting operation, or even implied it. She avers that she

“made it clear” that a veterinarian was involved, R. 268–69 (Dixon affidavit),

though she never explains what she said to Dr. Stock that effected this

clarification. We do not regard this dispute as material. Whether or not Ms.

Dixon imparted misinformation, it is undisputed that Dr. Stock interpreted her

responses as confirming his suspicion that no veterinarians were involved in the

dogfighting operation. Her own affidavit confirms that she discussed whether a

veterinarian was involved. Whether the information she imparted to Dr. Stock

was false or whether it was true, both participants confirm that their conversation

touched on an important bit of information that was not reported in the press or

known to the public: whether OBVME’s investigation involved any veterinarians.

Ms. Dixon does not dispute that she was not authorized to divulge nonpublic

information to outside parties.

We also agree with the appellant, as a matter of law, that under these

circumstances disclosure by a clerical employee of information about an ongoing

investigation was a constitutionally sufficient basis for dismissal, even assuming

the employer could not know whether she leaked specific information not known

to the press and public. The reasons for forbidding such disclosures are manifold.

Press reports are not always accurate; confirmation by agency insiders can supply

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important information in the form of corroboration. (That is why the CIA

regularly responds to inquiries by saying it can “neither confirm nor deny.”)

Questioners with special knowledge or background are often capable of eliciting

new information even when their informant is unaware she is going beyond the

public record. Sometimes one question leads to another, and a well-intentioned

informant discovers she has unintentionally spilled the beans. And however

circumspect the agency employee may be, her supervisors are not usually able to

monitor all conversations; a blanket rule against discussing ongoing

investigations is easier to enforce.

Even drawing all factual inferences in Ms. Dixon’s favor, and assuming she

did not “compromise” the investigation merely by speaking to Dr. Stock, the

salient point, we believe, is that she was an employee who had access to

confidential information, and was repeatedly discussing an ongoing investigation

with an interested party outside her office. The (presumed) fact that she did not

disclose any specific confidential information is less important than that she could

and might have—perhaps even without being aware she was doing so. Ms.

Kirkpatrick was the “point woman” to whom inquiries regarding OBVME

investigations were to be addressed. Having unauthorized employees taking it

upon themselves to open up alternative channels of inside information about the

organization and its practices plausibly constitutes a “disruption” in the operation

of the organization. Garetto, 100 F.3d at 815.

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 In response, the plaintiff argues first that there is no evidence in the record

of a formal OBVME policy against disclosure of information about an ongoing

investigation, other than specific confidential information not already known to

the press and public. Appellee’s Brief at 27. We do not entirely agree.

Testimony by the chairman of the OBVME, by Ms. Kirkpatrick, and by the

plaintiff herself indicates that such a policy existed, was “common knowledge”

among employees, and was known to Ms. Dixon. See supra 3–4, above. One

member of the board, however, described the prohibition as a matter of “prudent”

judgment while saying that it was not a “requirement.” R. 380. Drawing all

factual inferences in favor of the plaintiff as the party opposing summary

judgment, we assume that no such policy was formalized or officially made a

“requirement” of the job. But we do not think the dispute is material. Nothing in

the First Amendment jurisprudence of the Supreme Court or this Court (or, so far

as we are aware, that of other Courts of Appeals) holds that public employees

may not be terminated for speech that is disruptive to agency operations unless

the agency had promulgated a formal policy on the issue in advance. Whether the

employer’s action was pursuant to a properly promulgated and announced official

policy may be a question of contract law, employment law, or administrative law,

but it is not a concern of the First Amendment. The question before us is whether

the government employer’s interest in restricting the employee’s speech is

sufficient to outweigh the employee’s First Amendment interest. The existence of

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a formal policy may well strengthen the employer’s argument in cases where such

a policy has been promulgated, but its absence does not render the employer

helpless to discipline an employee whose speech has disrupted the work of the

agency.

The plaintiff argues next that there could be no genuine policy against

disclosing information about an ongoing investigation because the board itself,

and Ms. Kirkpatrick, made public statements regarding the investigation.

Appellee’s Br. 27. See R. 301 (Kirkpatrick dep.) (explaining what information

she would provide in response to public inquiries). This is a non sequitur. It was

part of Ms. Kirkpatrick’s job as Executive Director to address the media on

OBVME’s behalf. R. 343 (Kirkpatrick dep.). It does not follow from the fact

that agencies or heads of agencies must sometimes provide information to the

public about investigations that low-level employees who have access to

confidential materials may take it upon themselves to reveal information about

investigations. A district attorney will often speak to the press about an

investigation; that does not mean that every employee in the homicide division is

free to do the same.

The plaintiff argues next that a policy prohibiting Ms. Dixon from

disclosing information about investigations “would have violated state law.”

Appellee’s Br. 28, citing the Oklahoma Open Records Act and Oklahoma Statute

Tit. 51, § 24A.1 et seq. This Act does not require or permit clerical employees or

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investigative assistants to speak to outsiders about investigations. The obligations

run to the agency, not to Ms. Dixon. Moreover, Ms. Dixon does not specify

which “record” she was prevented from “disclosing” to the public. Her unofficial

conversations with Dr. Stock in his veterinary office on her own time had nothing

to do with providing public records to anyone “during regular business hours.”

Okla. Stat. Tit. 51, § 24A.5.

The plaintiff’s final argument on this point is that such a policy would be a

“prior restraint on speech,” which would violate the First Amendment “on its face

and as applied to Ms. Dixon.” Appellee’s Br. 28. This argument defies both law

and common sense. Ms. Dixon was not restrained before the fact; she was

terminated after the fact for speech believed to be disruptive of agency

operations. “[U]nlike an adverse action taken in response to actual speech, [a

prior restraint] chills potential speech before it happens.” Brammer-Holter, 492

F.3d at 1209 (quoting Arndt v. Koby, 309 F.3d 1247, 1251 (10th Cir. 2002)).

Typically, a prior restraint is a requirement that a speaker obtain government

approval for her message in advance of publishing it—or, in rare cases, a “gag

order” targeted at particular speech. Arndt, 309 F.3d at 1251–52. There is

nothing in this case to suggest that OBVME’s response to Ms. Dixon’s speech

was anything other than an “adverse action” that was “taken in response to actual

speech.”

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 Having concluded that OBVME had a legitimate reason for terminating Ms.

Dixon, rooted in the disruptive effect of disclosures by employees of information

about ongoing investigations, we must turn to the balancing. Ms. Dixon’s speech

regarding the conduct of the dogfighting investigation arguably sought to expose

what she perceived to be the misuse of public funds by Mr. Fullerton and, by

extension, OBVME. Characterized as such, that speech was of public concern,

and putting aside its allegedly misleading character as we must (even false speech

deserves some First Amendment protection), even of some public importance.

See Conaway v. Smith, 853 F.2d 789, 797 (10th Cir. 1988) (“Speech that seeks to

expose improper operations of the government . . . clearly concerns vital public

interests.”). But we have to weigh Ms. Dixon’s interest in making that speech,

and the interest of her audience in hearing it, against the interests of her

government employer. Brammer-Hoelter, 492 F.3d at 1207. While “there is no

easy formula for ‘weighing’ an employee’s First Amendment speech against an

employer’s interest in an efficient and disciplined work environment,” Id.

(quoting Casey, 473 F.3d at 1333), the balance in this case clearly tips towards

OBVME.

The Supreme Court has recognized the employer’s significant interest in

regulating speech that “interferes with the regular operation of the enterprise.”

Rankin v. McPherson, 483 U.S. 378, 388 (1987); see also Flanagan v. Munger,

890 F.2d 1557, 1566 (10th Cir. 1989) (citing employer’s interest in “avoiding

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direct disruption . . . of the public employer’s internal operations and employment

relationships.”). Certainly having to worry about the possibility that Ms. Dixon

would leak confidential information counts as disruptive of the everyday

operations of OBVME. OBVME has every reason for a policy that discourages

employees from speaking out on outgoing investigations, especially employees

who have regular access to confidential and sensitive information.

Pickering also alludes to the interests of an employer in speaking in a

single, consistent voice. Pickering, 391 U.S at 572-573. See also Cass R.

Sunstein, Government Control of Information, 74 Cal. L. Rev. 889, 919 (1986)

(“In its capacity as employer, the government has two interests that come up in

many contexts: the desire to avoid disruption of working relationships and the

need to set out a uniform official position.”). By speaking out, unauthorized by

her employer, Ms. Dixon not only risked compromising the dogfighting

investigation (an investigation that was still going on) but also frustrated the

ability of OBVME to control and fashion its own message. Both of these are

important interests, and in this case we find that, when balanced against Ms.

Dixon’s speech rights, they should win out.

We need not, and could not, decide today the full range of circumstances in

which a government employer is entitled to forbid discussion of agency

operations with outside parties. We can address only the circumstances of this

case. Among the circumstances that inform our decision are (1) that OBVME is

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an investigative agency with legitimate concerns about confidentiality; (2) the

breach of confidence involved an ongoing investigation; (3) the employee

involved was in investigative assistant, with access to confidential information

because of her typing and filing duties but no discretionary authority over the

matters she discussed; (4) the employee was aware that the agency did not want

its employees to discuss investigations with outside parties, but instead to refer

inquiries about investigations to the executive director; (5) the disclosures did not

involve criminal misconduct 7 or other serious wrongdoing, but at worst the

employee’s disagreement about the use of agency resources; and (6) the

disclosures were made to an interested outside party and not to a public body with

authority to investigate or redress her employers’ wrongdoing if there were any.

We offer no opinion regarding other potential cases.

We therefore hold that, on de novo review of this issue of law, the

defendants’ termination of an employee for unauthorized disclosure of

information about an ongoing investigation, under the circumstances of this case,

was “necessary to prevent the disruption of official functions or to insure

effective performance by the employee.’” Gardetto, 100 F.3d at 815. The

7
Some of Ms. Dixon’s speech, apart from her speech about the dogfighting
investigation, may have involved allegations of criminal misconduct such as
speeding or mislabeling expense reports. We confine our attention here to aspects
of Ms. Dixon’s speech that we have concluded addressed matters of public
concern.

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appellant is entitled to qualified immunity on the ground that the defendants’

actions did not violate the plaintiff’s First Amendment rights.

IV. CONCLUSION

The judgment of the United States District Court for the Western District of

Oklahoma is REVERSED, and the case remanded for entry of an order granting

summary judgment in favor of the appellant.

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