Dempsey v. City of Omaha

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-3667
___________

Tim Dempsey, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
City of Omaha, a municipal *
corporation; Michael G. Fahey, *
Individually and in his Official *
Capacity; Paul Landow, Individually *
and in his Official Capacity; Thomas *
Marfisi, Individually and in his Official *
Capacity, *
*
Defendants - Appellees. *
___________

Submitted: April 15, 2010
Filed: February 8, 2011
___________

Before LOKEN, BRIGHT and MELLOY, Circuit Judges.
___________

MELLOY, Circuit Judge.

Tim Dempsey, the former Chief of Police for Elkhorn, Nebraska, appeals the
district court's denial of his First Amendment retaliation claims against the City of
Omaha. The events giving rise to this action occurred in the context of Omaha's
contested and protracted annexation of Elkhorn. Throughout and following this
process, Omaha hired most Elkhorn employees who sought employment with Omaha.
Dempsey argues he participated in protected speech and Omaha retaliated against him
based on his speech by not hiring him. The district court granted summary judgment
in favor of the defendants. We reverse in part.

I. Background

Omaha passed an ordinance to annex Elkhorn in March 2005. Legal battles
held up the annexation until March 1, 2007. See City of Elkhorn v. City of Omaha,
725 N.W.2d 792 (Neb. 2007). At that time, the Nebraska Supreme Court entered
judgment rejecting the final legal challenges to the annexation. Id. Dempsey was the
Elkhorn Chief of Police from September 1999 through the annexation and was
considered a management employee by Elkhorn. Prior to finalization of the
annexation, Dempsey spoke on several occasions with Omaha employees in an effort
to secure employment with Omaha.

In April 2006, Dempsey spoke with Paul Landow, the Omaha Mayor’s Chief
of Staff, about the potential fate of Elkhorn employees in the event of a successful
annexation. Landow asked Dempsey about Dempsey's own plans, and Dempsey
responded that he wanted to work another two or three years until his wife could
retire. Dempsey does not claim to recall Landow's specific response, but asserts
Landow said nothing leading him to believe he would not be employed by Omaha.

On October 13, 2006, Thomas Marfisi, Omaha’s Human Resources Director,
sent a letter to Elkhorn’s employees stating that Omaha would be “interested in hiring
qualified management employees that express an interest in applying for available
positions” and that “[a]ny decision to hire management employees will be made on
a case by case basis and will be based on the needs of Omaha at the time of the
application." The letter instructed Elkhorn employees to call Marfisi if interested in
employment with Omaha. Shortly thereafter, Dempsey called Marfisi and asked what
steps he should take to obtain employment with Omaha. Marfisi told Dempsey to

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submit a resume. Dempsey confirmed the phone call with an email, sent Marfisi his
resume, and informed Marfisi of his current salary and benefits.

In early November, the Omaha World-Herald published an article discussing
a hiring freeze at Omaha. Marfisi then sent a letter to Elkhorn employees stating the
freeze did not apply to Elkhorn employees and “Omaha continues to have every
expectation of hiring Elkhorn’s employees.”

Also in late October or early November 2006, Omaha delivered fourteen
employment forms to the Elkhorn Police Department. Dempsey gave the forms to his
thirteen police officers and completed a form himself. Dempsey emailed a copy of the
form to Marfisi on November 9 and mailed the original on November 13. The form
was lengthy and was entitled "Personal History Statement." The form was not an
application for a specific position, but it is undisputed the purpose for submitting the
form was to seek employment with Omaha.

In December 2006, Dempsey talked to Omaha Police Chief Thomas Warren at
a 911 User Board meeting. Warren asked about Dempsey’s employment plans and
asked, “You’re not interested in working on the streets are you?” Dempsey
responded, “Tom, I’m 62 years old. I can’t work in a cruiser car.” In an affidavit in
this lawsuit, however, Dempsey stated, “At no time did I tell Chief Warren that I
would not accept an entry level position. I simply advised him that I could not work
as a regular cruiser officer." The record does not reflect which positions or officer
rankings within the Omaha Police Department were entry level or required "work in
a cruiser car."

In January 2007, Dempsey again met with Warren and talked about the transfer
of police officers to Omaha. Warren asked Dempsey “what are they going to do with
you?” According to Dempsey, Warren was surprised that Dempsey hadn't heard back
from Marfisi. This prompted Dempsey to contact Marfisi again. Dempsey sent

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Marfisi an email discussing his meeting with Warren and expressing concern that
Warren appeared not to have received a copy of Dempsey's personal-history form or
resume. In the email, Dempsey referenced other Elkhorn management employees who
had progressed in their own respective job searches with Omaha and asked Marfisi for
a response regarding his employment prospects.

Marfisi did not respond directly to Dempsey, but instead, talked to Landow,
who met with Dempsey in late January. Marfisi later characterized the email from
Dempsey as a "plea for help." Marfisi admits that, by the time he received the email
from Dempsey, he had twice met with groups of Elkhorn police officers and had told
the officers " I thought [Dempsey] would get a job with the City" and "Landow was
very interested in trying and very active in trying to find a job for Tim Dempsey."

At the late-January meeting between Dempsey and Landow, Landow asked
Dempsey why Dempsey had hired a man named Dave Friend to work part time in the
Elkhorn Police Department. Dempsey said he was surprised Landow asked about
Friend and that Friend had run unsuccessfully against Landow's boss, Mayor Fahey,
for the office of Mayor of Omaha. Dempsey responded that he had known Friend for
twenty years and Friend had previously worked as an Omaha police officer. Landow
also described a work situation to Dempsey and asked Dempsey how he would handle
the situation. Landow then asked Dempsey what he wanted to do, and Dempsey again
told Landow that he wanted to work two or three more years. Dempsey told Landow
his salary was approximately $75,000. Landow stated he thought Dempsey's salary
was in the $90,000s, he would try to find a job for Dempsey, and it would be "no
problem" to find a job. Landow did not tell Dempsey to take further action or apply
for any specific job. According to Marfisi, even though Marfisi was Omaha's Human
Resources Director, Landow possessed more authority than Marfisi for the purpose
of hiring Dempsey because Landow had the authority to add "unclassified" positions
that paid above $60,000.

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 On February 20, Omaha informed seven of Elkhorn's thirteen police officers
that they would not be hired by Omaha. A reporter from the Omaha World Herald
talked to Landow who told the reporter the seven officers had failed background or
qualification investigations. A reporter then contacted Dempsey for comments
regarding the denial of employment to the seven officers. Dempsey's response was
printed in the paper the following day. The article was entitled "Police Hiring
Decision Criticized." It began with the sentence, "Elkhorn leaders expressed dismay
today over Omaha's decision to hire fewer than half of Elkhorn's police officers." It
quoted the Elkhorn city attorney as being "contemptuous" of the decision. The article
continued, "Elkhorn Police Chief Tim Dempsey said the seven officers who didn't
make the cut were very disappointed. 'They've been coming to work every day, doing
a good job and thought they'd have a job.'" Finally the article stated that Dempsey had
not been offered a job and noted, "Dempsey, 63, said it was possible that he would be
offered a job elsewhere in Omaha city government."

On February 22, a reporter again contacted Dempsey to ask about the officer
hirings. An article printed the following day, February 23, cited criticism of Omaha
by Dempsey and a response from Landow. The article was entitled "Officers
Disqualified Without Job Reviews." It began, "Omaha never asked Elkhorn's police
chief how his force performed on the job, but the city ruled out hiring more than half
of Elkhorn's officers." The relevant statements from Dempsey relayed in the article
were a general criticism of Omaha's process. The article stated, "Dempsey said he was
surprised he was not asked for a review of his 13 officers' performances. It would
make sense, Dempsey said, that their past performances would indicate how they
would perform in the future." The article quoted Dempsey as saying he was "baffled."
It also contained a response from Landow who refused to identify the information
used to disqualify the seven officers. It also quoted Landow as indicating that he
believed, based on conversations with Dempsey, that "Dempsey seemed aware that
some of his officers had background problems."

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 On February 27, 2007, Dempsey met with personnel from the Omaha Police
Department to discuss annexation. Following the meeting, Dempsey sent an email to
the seven Elkhorn officers not hired by Omaha, telling them they would be required
to turn in their equipment following annexation. The seven officers sent letters to
Dempsey claiming rights of continued employment based on a collective bargaining
agreement and a state statute concerning annexations. The officers refused to turn
over their equipment unless terminated in writing by a superior officer, citing the need
to remain "prepared to respond to a public emergency." Dempsey passed the letters
on to Omaha officials, and Marfisi twice called Dempsey, saying, “This is a bullshit
deal.” Marfisi told Dempsey to expect a letter from Omaha’s attorney to pass on to
the officers. Dempsey, however, refused, stating that until the annexation was
complete, he did not feel it would be appropriate for him to have the officers
relinquish their equipment.

On March 1, 2007, Dempsey met with Don Thorson, the Omaha Mayor’s
Deputy Chief of Staff. Dempsey described their meeting, stating, "He [told] me it was
his task to find me a job." The men discussed the possibility of an unspecified
position with Homeland Security or emergency management, and Thorson told
Dempsey he would try to find Dempsey a job. On March 12, however, Dempsey
received a letter from Landow telling him that there was no position available for
Dempsey in Omaha. The letter stated, "Should something come up in the future, I will
be in touch."

Eventually Dempsey initiated the present action against Omaha, Fahey,
Landow, and Marfisi. Dempsey alleged a due process violation and First Amendment
retaliation. In support of his First Amendment claim, Dempsey asserted that his
comments to the Omaha World Herald were protected speech. He also claimed his
refusal to order his officers to relinquish their equipment was protected speech. He
alleged the defendants had repeatedly assured him they were working to find him a
position but ceased their efforts and refused to hire him in retaliation for his protected

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speech. Dempsey alleged in the alternative that he became an Omaha employee by
operation of law and that Omaha terminated his employment via the March 12 letter.

In discovery, it was revealed that Omaha filled the following positions in its
police department at times relevant to the present case:

(1) three police captains on February 11, 2007 at annual salaries of
$81,519
(2) five police lieutenants on February 11, 2007 at annual salaries of
$70,459
(3) five police sergeants on February 11, 2007 at annual salaries of
$60,323
(4) one police sergeant on February 27, 2007 at an annual salary of
$60,323
(4) one police sergeant on March 11, 2007 at an annual salary of
$60,323
(5) one police lieutenant on April 9, 2007 at an annual salary of
$70,459
(6) two police sergeants on April 22, 2007 at annual salaries of
$60,323
(7) one police sergeant on May10, 2007 at an annual salary of
$60,323
(8) one police lieutenant on July 1, 2007 at an annual salary of
$70,459
(9) one police sergeant on July 1, 2007 at an annual salary of $60,323

The parties have not pointed to anything in the record indicating that these
positions required work in a cruiser or were considered "entry-level" positions. It was
also revealed that all Elkhorn employees who sought employment with Omaha
received job offers—other than Dempsey and the seven officers. It is undisputed that
Dempsey was the only Elkhorn employee, management or otherwise, who sought
employment with Omaha and was denied employment for the purported reason that
no position was available. Of fifty-five Elkhorn employees at the time of annexation,
forty-three obtained employment with Omaha. The remaining twelve employees

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included Dempsey and the seven police officers mentioned above, three employees
who did not apply to work with Omaha, one who declined a position with Omaha.

The defendants moved for summary judgment. Before the district court ruled
on the motion, a court addressed similar due process claims in a separate lawsuit
between the seven officers and Omaha. There, the court rejected the due process
theory. Barnes v. City of Omaha, 574 F.3d 1003, 1008 (8th Cir. 2009). Dempsey
then voluntarily dismissed his own due process claim. Accordingly, the district court
in the present case addressed only Dempsey's First Amendment claims.

In determining whether Dempsey had participated in protected speech, the court
looked at Dempsey's speech to the newspaper and at the "speech" regarding Marfisi.
Applying Garcetti v. Ceballos, 547 U.S. 410 (2006), the court first stated Dempsey
had spoken as a citizen and not as an employee because Omaha was not his employer
at the time of any of the purportedly protected speech. The court then held the speech
to Marfisi did not relate to a matter of public concern. The court assumed without
deciding that the speech to the newspaper related to a matter of public concern.

The court next found no adverse employment action because Dempsey was
never an Omaha employee. The court held in the alternative that even if Dempsey had
suffered an adverse employment action, Dempsey failed to create a triable question
of fact regarding the existence of a causal connection between his speech and any
adverse action.

The individual defendants asserted qualified immunity in the district court.
Given the court's resolution of the substantive issues, however, it did not reach the
question of qualified immunity for the individual defendants.

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II. Discussion

We review a grant of summary judgment de novo, viewing the record in the
light most favorable to Dempsey, the non-moving party, and drawing all reasonable
inferences in his favor. Davenport v. Univ. of Ark. Bd. of Trs., 553 F.3d 1110,
1112–13 (8th Cir. 2009). To state a prima facie case for first amendment retaliation,
it is necessary for Dempsey to show: (A) he participated in protected speech; (B) the
defendants took an adverse employment action against him; and (C) the speech was
a substantial or motivating factor in the defendants' decision to take the adverse action.
Id. at 1113; Morris v. City of Chillicothe, 512 F.3d 1013, 1018–20 (8th Cir. 2008).1

A. Protected Speech

A public employee's constitutional protections from employer discipline based
on the employee's speech are limited to statements the employee makes (1) as a citizen
(2) on matters of public concern. See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006);

1
The parties focus their arguments on the prima facie case and do not address
whether the tripartite burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), as applied in Morris, or the "same-decision" framework
of Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274 (1977), as applied in Davison
v. City of Minneapolis, 490 F.3d 648 (8th Cir. 2007), should guide the remainder of
the analysis in this case. See Davison, 490 F.3d at 655 & n.5 (discussing our court's
inconsistent treatment of the different analyses and applying Mt. Healthy); see also
id. at 662–65 (Colloton, J., dissenting) (concluding the McDonnell Douglas
framework should apply). Because the district court held Dempsey failed to make out
a prima facie case, it did not reach this question, and neither party advocates the
application of a particular framework. Rather, the parties argue generally in terms of
causation. In this setting, we are mindful of the fact that the Mt. Healthy framework,
like the McDonnell Douglas framework, "is a helpful tool, but it is still just a tool."
Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir. 1996) (describing the prima
facie case framework). Under either approach, liability is conditioned on proof that
a retaliatory animus "was a substantial or motivating factor." This is the extent of the
causation question we address today.
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Davenport, 553 F.3d at 1113. Speech that satisfies Garcetti's two-prong test is not free
from employer regulation unless the employee's "right to free speech outweighs the
[employer's] interest in promoting the efficiency of its public services." Davenport,
553 F.3d at 1113; see also Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) ("The
problem in any case 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."). The boundaries of the two Garcetti inquiries are not defined
in concrete terms, and as with most balancing exercises, reasonable minds may
disagree as to the outcome of the Pickering test. See, e.g., Sexton v. Martin, 210 F.3d
905, 914 (8th Cir. 2000) ("[I]n many free speech cases the outcome of the Pickering
balancing test would be unclear to a reasonable official."); Brammer-Hoelter v. Twin
Peaks Charter Acad., 492 F.3d 1192, 1207 (10th Cir. 2007) ("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.") (citation omitted). Resolution of
these questions are matters of law that we review de novo, but underlying factual
disputes related to these questions must be left for the jury. See Connick v. Myers,
461 U.S. 138, 148 n.7 (1983) ("The inquiry into the protected status of speech is one
of law, not fact."); Casey v. City of Cabool, 12 F.3d 799, 803 (8th Cir. 1993) ("[A]ny
underlying factual disputes concerning whether the speech at issue [is] protected
should [be] submitted to the jury.")

In the present case, we face these three separate questions and also the threshold
inquiry of whether Garcetti and Pickering apply at all in the unique context of this
case: Omaha is the entity accused of taking retaliatory action, but Omaha was not
actually Dempsey's employer at the time he made the allegedly protected statements.2

2
In his complaint, Dempsey alleged alternative legal theories, asserting that (1)
he became Omaha's employee by operation of law through the annexation process and
was terminated by Omaha due to his protected speech, or (2) he was Elkhorn's
employee until annexation was complete and Omaha subsequently refused to hire him
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This inquiry may be outcome dispositive in some cases because, if the public-
employer standards of Garcetti and Pickering do not apply, a plaintiff is entitled to the
full panoply of First Amendment protections against governmental retribution. See
Wishnatsky v. Rovner, 433 F.3d 608, 611–12 (8th Cir. 2006) (reinstating a case
involving the denial of access to government services based on speech and stating,
"Discrimination against speech because of its message is presumed to be
unconstitutional, and viewpoint discrimination is an egregious form of content
discrimination") (internal citations and quotation marks omitted).3

because of his protected speech. It is permissible to plead in the alternative, and it is
understandable why Dempsey did so in the present case. The seven officers presented
non-frivolous due process claims in their separate litigation against Omaha, and
Dempsey presented a similar claim below. Complicating the due process arguments
were outstanding questions of law regarding the interplay between Nebraska statutes
dealing with the assumption of contractual obligations by the annexing city, and the
status of the target cities' employees. As already noted, the due process claims did not
prevail in the separate litigation, and Dempsey abandoned his own due process claim
before the district court. Regardless, given the uncertainty in the applicable law, it is
clear why Dempsey took advantage of the permissible practice of pleading alternative
legal conclusions.

Here, the alternative pleading led to a lack of clarity in the presentation of
issues to the district court. Ultimately, however, we believe it is appropriate to
analyze Dempsey's claim as a failure-to-hire claim. It is undisputed his
position—Elkhorn Chief of Police—was eliminated through the annexation.
Accordingly, whether the adverse action in the present case was merely the failure to
move him to a new position within Omaha after he became an Omaha employee by
operation of law, or whether Omaha simply refused to hire him, it is the refusal to hire
or place him in a position that he alleges as adverse.
3
We recognize it is questionable whether retaliation or discrimination is the
appropriate label for use in this case. Perhaps if Dempsey had used the term
discrimination the issue of Garcetti and Pickering might not have been raised. Given
the manner in which the case is presented, however, we find use of the term retaliation
inescapable. Nevertheless we acknowledge and agree with comments from another
court that noted:
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 We address this threshold inquiry below and conclude that, in the limited
context of this case, Garcetti and Pickering do not apply. We also hold in the
alternative that, even if Garcetti and Pickering were applicable, Dempsey's comments
to the newspaper reporter would qualify for protection as speech by a citizen that
addresses a matter of public concern and has little ability to impede Omaha's efficient
provision of public services.

1. Threshold Inquiry: Applicability of Garcetti

We can envision many situations where a public employee might speak in a
manner deemed objectionable by governmental actors other than his or her actual
employer. Examples include statements made by members of state–federal crime task
forces or any multi-government or multi-agency organizations. In these types of joint
ventures, it is possible that personnel oversight may be distributed or delegated, and
governmental actors other than the speaker's actual employer may be in a position to
retaliate against, or otherwise chill, speech. In such situations, where an employee
who asserts First Amendment rights speaks against an entity other than his or her
actual employer, a hard question arises: should courts analyze the purportedly
protected speech and alleged adverse action under the standards that apply when a
state actor has denied a government benefit based on a normal citizen's speech or
under the standards for less-protected speech as per Garcetti and Pickering.

The word "retaliation" has the potential, realized here, to divert attention
from the rule that both threats designed to deter future speech and
penalties for past speech are forbidden. "Retaliation" as a legal theory
comes from employment-discrimination suits. We have borrowed the
word in cases where an employer punishes an employee on account of
speech. Using one word for two kinds of claim has the potential to
confuse. Because only a subset of viable first-amendment claims
involves retaliatory discharge, it is generally best to avoid the word.

Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009) (internal citations omitted).
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 In the present case, Dempsey argued the answer was simple and clear. The
district court appears to have agreed, addressing the question in the context of
Garcetti's "citizen speech or employee speech" inquiry. The court concluded:

Dempsey's speech that is at issue here was not made in connection with
any official duties as an employee of the City of Omaha. While he may
have spoken in his official capacity as the Police Chief of the City of
Elkhorn, he was not employed by the City of Omaha at the time he made
the statements in question. The balance between a plaintiff's right of free
speech as a citizen and a defendant government entity's interest are not
called into question where the government entity is not the employer.
Drawing all inferences in favor of Dempsey, the Court concludes that he
spoke as a citizen.

(Emphasis added).

Although we agree with the district court's ultimate conclusion in this case, we
do not necessarily agree that the inquiry will always be as straightforward as
suggested by the district court. While this literal approach provides ease of
application and clarity for employers and litigants, it leaves little room for employer
control of speech within the setting of multi-employer ventures or task forces. The
degree to which employers distribute and delegate authority over one another's
employees presumably varies widely, and it is possible that the concerns addressed
in Garcetti and Pickering merit consideration in such settings.

Here, however, we need not and do not purport to resolve this question in any
context other than the limited facts at hand. The present case simply does not involve
a situation where governments have come together in an ongoing cooperative spirit
to achieve a common goal or where ongoing supervision of employees is delegated
to a cooperating agency or government. Rather, the present case involves a hostile,
politicized, and heavily resisted annexation of a small city by a larger city. The two
years of litigation that held up the annexation are evidence of this fact. We simply do

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not view the present case as analogous to the more difficult example of public joint
ventures.

In this context, we find nothing in Garcetti or Pickering to suggest a non-
employer should be entitled to control the speech of the target entity's employees. We
see little potential benefit to the public's interest in the free flow of information or the
efficient provision of government services from treating an annexing city as the de
facto employer of the target city's employees. To hold otherwise would risk the
suppression of information surrounding a political event: the expansion of one
municipality and the dissolution of an other.

To the extent speech occurs when a political, government-changing act such as
an annexation is not yet complete, the public has a strong interest in understanding the
dynamics and consequences of the potential annexation. To the extent speech occurs
when the annexation is actually, or effectively, complete, the public's interest
continues: members of the public are entitled to learn about the practices of their
newly and involuntarily acquired public officials. We hold that Garcetti simply does
not apply to Dempsey's speech.4

2. Speech as a Citizen

We write further, and in the alternative, because even if Garcetti were
applicable where the alleged violator was not the employer, we would hold that

4
We find it compelling that at least some of Omaha's actions, viewed in the light
most favorable to Dempsey, were not in furtherance of providing efficient and
uninterrupted public services, but necessarily would have detracted from the provision
of such services. For example, it can hardly be argued that Omaha's interactions with
Dempsey were strictly in furtherance of a "smooth transition" or the "uninterrupted"
provision of public services when Omaha asked Dempsey to demand that his officers'
relinquish their equipment before they ceased being Elkhorn employees.
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Dempsey spoke as a citizen on a matter of public interest. The Supreme Court in
Garcetti stated, "We hold that when public employees make statements pursuant to
their official duties, the employees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their communications from employer
discipline." Garcetti, 547 U.S. at 421 (emphasis added). The Court continued,
"Restricting speech that owes its existence to a public employee's professional
responsibilities does not infringe any liberties the employee might have enjoyed as a
private citizen." Id. at 421–22 (emphasis added).

This seemingly straightforward and bright-line rule is less clear than it appears
at first blush because the Court had "no occasion to articulate a comprehensive
framework for defining the scope of an employee's duties in cases where there is room
for serious debate." Id. at 424. The Court spoke broadly of the need to balance the
employers' control of operations and services with the public's access to the informed
opinions and otherwise unavailable information held by public employees. Id. at
419–421. In doing so, the Court distinguished speech undertaken as part of an
employee's "official duties" and "professional responsibilities" from speech that was
merely related to employment or that occurred in the workplace. For example, the fact
that the speech at issue in Garcetti occurred "inside his office, rather than publicly,"
and "concerned the subject matter of [the employee]'s employment . . ." was
"nondispositive." Id. at 420–21. Because it was undisputed in Garcetti that the speech
was pursuant to the employee's duties, the Court did not flesh out these distinctions.
Id. at 424.

Subsequently, our court has had occasion to address this issue. In Bradley v.
James, 479 F.3d 536 (8th Cir. 2007), we held that a police officer's "unsubstantiated
comments" about another officer were not made as a citizen because the speaker made
his allegations only in the context of an official investigation where he was duty
bound to respond to the investigator's questions. Id. at 537–38. Similarly, in McGee
v. Pub. Water Supply Dist. # 2, 471 F.3d 918 (8th Cir. 2006), we addressed First
Amendment claims by the manager of a county water district who had spoken to a
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board of directors against a particular project. There, we looked to the manager's
admission that his duties included advising the board "regarding regulatory and legal
requirements." Id. at 921. We also noted that the manager had supervisory duties
over the project at issue and that his speech to the board concerned legal issues
surrounding the project. Accordingly, we held he spoke as an employee rather than
as a citizen. Id. In doing so, we said "determining the scope of an employee's official
duties . . . is a practical inquiry that focuses on 'the duties an employee actually is
expected to perform,' rather than his formal job description." Id. (quoting Garcetti,
547 U.S. at 424–25.) And in Bailey v. Dep't of Elem. & Sec. Ed., 451 F.3d 514 (8th
Cir. 2006), we illustrated the practical nature of this inquiry, finding a plaintiff spoke
as an employee rather than as a citizen where he had asserted, "I consider any time I
spend addressing this matter with you or the agency to be services I am giving the
state as a consultant." Id. at 520.

Recently, in Bonn v. City of Omaha, 623 F.3d 587 (8th Cir. 2010), we found
employee speech rather than speech as a citizen and affirmed a district court's
summary judgment against an employee's federal claims. In Bonn, Omaha's Public
Safety Auditor prepared a report describing traffic stops. The report was critical of
officers' actions, and the employee also made critical comments when contacted by
the media. Regarding the report itself, we noted that the employee admitted in an
answer to an interrogatory that she prepared the report "as a function or official duty
of [her] position as the Public Safety Auditor of the City of Omaha." Id. at 592.
Accordingly, we held the report was not speech as a citizen. In holding that her
statements to the press also served as employee speech rather than speech as a citizen,
we emphasized that the employee spoke to the media pursuant to her official duties
and that "[s]he acted in response to media inquiries about a report that she published
as part of her work as auditor . . . ." Id. at 593 (emphasis added). Bonn, then, was
similar to Bradley, McGhee, and Bailey where the speech at issue was pursuant to
official duties.

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 In Davenport, the court analyzed two instances of speech. The court found
employee speech in a context nearly identical to the official-inquiry response in
Bradley. Davenport, 553 F.3d at 1113. The other occurrence, however, involved a
report of alleged misuse of resources by a university's chief of public safety. As to
this separate instance of speech, we said, "Davenport's duties did not include reporting
either wrongdoing by a superior officer or a lack of resources. With regard to his
1999 statements, Davenport was speaking as a citizen on a matter of public concern."
Id.

Against this backdrop, we view Dempsey's statements to the Omaha World
Herald to be speech as a citizen rather than speech as an employee. Unlike the
comments of a commanding uniformed officer at the scene of an emergency or a
Public Safety Auditor answering questions about an official and personally authored
report, Dempsey's comments to the reporter were informal and did not "take on the
character of '[o]fficial communications.'" See, e.g., Foley v. Town of Randolph, 598
F.3d 1, 7–8 (1st Cir. 2010). While it is true that "there will be circumstances in
which" employees' comments to the press may take on such a character, id. at 8, mere
relationship between the subject matter of the speech and employment is insufficient
to satisfy Garcetti. Here, the newspaper approached Dempsey because he was the
police chief of Elkhorn and the complaining officers' ultimate boss. Dempsey admits
he was merely answering the reporter's questions. These undisputed facts establish
only that the reporter sought otherwise unavailable information from a person likely
to possess that information. We find nothing in the record suggesting Dempsey's
"official duties" or "professional responsibilities" required him to answer the reporter's
questions about the officers' qualifications for employment with another municipality
or discuss that other municipality's actions towards his officers. Garcetti, 547 U.S. at
421. Under Garcetti, a showing of a mere relationship to employment is insufficient
to preclude protection. To hold otherwise would effectively eliminate the distinction
between official-duty speech and job-related speech and render the cabining language
of Garcetti meaningless.

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 On the other hand, if Garcetti were otherwise applicable, we would find
Dempsey's "speech" regarding Marfisi and the efforts to have the seven officers
relinquish their equipment prior to Omaha's assumption of control to be employee
speech. Dempsey stated in a deposition that he thought what Marfisi was asking him
to do was wrong and that it would be unsafe to effectively terminate the Elkhorn
officers and leave Elkhorn short staffed before Omaha officially assumed public safety
functions. To the extent, then, that Dempsey's actions in response to Marfisi's
demands constituted speech, Dempsey took those actions to fulfill his duties of
providing for the public's safety and managing the Elkhorn Police Department.

3. Speech on a Matter of Public Interest & Pickering Balancing

Regarding the subject matter of Dempsey's speech to the newspaper and the
Pickering balance between the public's interest and the government entity's need to
maintain efficient operations, we conclude the comments to the newspaper related to
a matter of public concern and were, on balance, worthy of protection. As already
noted, the annexation was a contested and litigated political issue. The fact that the
newspaper repeatedly sought out information regarding treatment of the officers
suggests the information was material to public discourse. Dempsey criticized
Omaha's handling of employment related to the annexation, and "[c]riticism, no matter
how obnoxious or offensive, of government officials and their policies clearly
addresses matters of public concern." Casey v. City of Cabool, 12 F.3d 799, 802 (8th
Cir. 1993). Further, given the fact that government operations by Elkhorn were
winding down, there was little possibility of Dempsey's speech interfering with the
efficient provision of services by the City of Elkhorn. Lindsey v. City of Orrick, 491
F.3d 892, 900 (8th Cir. 2007) ("[A] public employer must, with specificity,
demonstrate the speech at issue created workplace disharmony, impeded the plaintiff's
performance or impaired working relationships.").5

5
Another conceptual difficulty with application of Pickering and Garcetti in this
case is the need to decide which municipality's operations are material to the balancing
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 Because we conclude in the alternative that Garcetti does not apply and that
even if it applies, Dempsey's speech to the newspaper is protected, we must address
the remaining elements of the prima facie case.

B. Adverse Action

As discussed in footnote 2, we address only the failure-to-hire aspects of
Dempsey's retalitation allegations. Omaha argues that, to the extent Dempsey alleges
a failure-to-hire, Dempsey possessed no protected right to obtain employment with
Omaha and, in any event, failed to apply for a specific position. We address these
arguments in turn.

With a First Amendment failure-to-hire claim against a government entity, as
with other cases dealing with purported denials of government benefits, it is not
necessary for a plaintiff to show that he or she possessed an entitlement to the benefit
such as a protected right to obtain employment. See Rutan v. Republican Party of Ill.,
497 U.S. 62, 71–72 (1990). The right at issue simply is not a due process right
dependent upon the possession of a protected interest. Rather, it is the more
generalized right not to suffer adverse consequences at the hands of a government
entity based upon the exercise of a protected right. The Supreme Court has

inquiry: the target city's or the annexing city's. To the extent impact upon Omaha, the
non-employer, could be viewed as material to the balancing inquiry, we view the
comments by a non-employee such as Dempsey regarding Omaha's treatment of seven
potential police officers to be of little consequence to Omaha's efficient and effective
provision of public services. There is no suggestion Omaha's provision of public
services was or was likely to be disturbed, and, given the relative sizes of Omaha's
police force and the seven-member group of Elkhorn officers, any such disruption
would seem unlikely. See, e.g., Davenport, 553 F.3d at 1113 ("[T]he record fails to
show that silencing Davenport's protected speech would advance the University's
interest in promoting the efficiency of its public services.").

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recognized this principle generally, and emphasized its importance in the context of
the First Amendment, in particular:

For at least a quarter-century, this Court has made clear that even though
a person has no "right" to a valuable governmental benefit and even
though the government may deny him the benefit for any number of
reasons, there are some reasons upon which the government may not
rely. It may not deny a benefit to a person on a basis that infringes his
constitutionally protected interests–especially, his interest in freedom of
speech. For if the government could deny a benefit to a person because
of his constitutionally protected speech or associations, his exercise of
those freedoms would in effect be penalized and inhibited. This would
allow the government to "produce a result which (it) could not command
directly."

Perry v. Sindermann, 408 U.S. 593, 597 (1972) (quoting Speiser v. Randall, 357 U.S.
513, 526 (1958)). In Perry, the plaintiff was a non-tenured junior college teacher with
no right to continuation of his year-to-year employment. In essence, the plaintiff in
Perry was subject to rehire annually. We see no meaningful distinction between
Dempsey seeking employment with Omaha and the plaintiff in Perry seeking
employment for the start of a new school year. The Court in Perry made clear that no
right to employment was required to state a First Amendment claim. Accordingly, the
fact that Dempsey may have held no contractual or statutory right to employment with
Omaha is not fatal to his claim. See id. ("[M]ost often, we have applied the principle
to denials of public employment."); Calvit v. Minneapolis Pub. Sch., 122 F.3d 1112,
1118 (8th Cir. 1997) ("Even if the school district did not have an obligation to
reassign him to Four Winds, the government 'may not deny a benefit to a person on
a basis that infringes his constitutionally protected interests—especially, his interest
in freedom of speech.'" (quoting Perry, 408 U.S. at 597)).

It is undisputed that Dempsey failed to apply for a specific position. Omaha is
correct that, typically, it is necessary for a plaintiff bringing a failure-to-hire claim to
identify a specific job, show that the job was available, and show that he was qualified
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for, and applied for, that job. See Green v. City of St. Louis, 507 F.3d 662, 666 (8th
Cir. 2007); Chambers v. Wynne Sch. Dist., 909 F.2d 1214, 1216 (8th Cir. 1990).6
There is an exception to the application requirement, however, where an employer had
"some reason or duty to consider [the plaintiff] for the post." Kehoe v. Anheuser-
Busch, Inc., 96 F.3d 1095, 1105 n.13 (8th Cir. 1996). Although use of the phrase
"some reason" suggests the exception is potentially broad, we previously have
described the exception relatively narrowly. See, e.g., Chambers, 909 F.2d at 1217
(formal application may be excused "if the job opening was not officially posted or
advertised and either (1) the plaintiff had no knowledge of the job from other sources
until it was filled, or (2) the employer was aware of the plaintiff's interest in the job
notwithstanding the plaintiff's failure to make a formal application"). At its heart, the
exception is akin to an estoppel-type argument. It prevents an employer or
prospective employer from asserting the absence of an application for a specific
position as a defense when the absence of such an application was immaterial to the
decision-making process or when the defendant was in large part responsible for the
omission. See Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir. 1996)
(addressing a case involving alleged discrimination in the treatment of an application
and saying, "It would be ironic—bizarre, in fact—if a victim of discrimination were
unable to vindicate her rights because she had the peculiar misfortune of being
discriminated against in a way that necessarily prevented her from making her prima
facie case.").

We are confident the exception applies in Dempsey's case. Marfisi admitted in
deposition testimony that Dempsey did not "fail to do anything on his part to seek to
get a position with the City of Omaha." Omaha's Chief of Police, the Mayor’s Chief
of Staff and Deputy Chief of Staff, and the Director of Human Resources knew
Dempsey was seeking a job with Omaha. Dempsey filled out the employment form

6
Regarding qualifications, Police Chief Warren admitted that Dempsey "would
have the qualifications to perform just about any job at the Omaha Police
Department."
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Omaha provided, sent his resume, and followed-up repeatedly. The high-level
employees he spoke with expressly led him to believe he had taken adequate steps to
apply for employment using the form Omaha provided. Dempsey discussed his
prospects repeatedly and received assurances from these personnel, all of whom
possessed or appeared to possess sufficient hiring authority to make such assurances.
A reasonable jury easily could conclude these repeated assurances more than
adequately explain why Dempsey did not take more specific action related to a
particular job. In accordance with Green and Chambers, Omaha cannot now avoid
suit because Dempsey relied upon those assurances. Because Dempsey was qualified
for several open positions filled after his protected speech (as discussed below), and
was not hired for those positions, we conclude he has alleged a failure to hire as an
adverse action.

C. Substantial or Motivating Factor / Causation

As discussed in footnote one, the parties raise generally the issue of causation
without comment as to the framework that should apply if Dempsey establishes a
prima facie case. Towards this end, the parties' arguments blend causation as an issue
for the prima facie case with arguments relevant to the final stages of burden-shifting
frameworks. Because these issues relate generally to causation, we address them
together, as presented by the parties.

To show causation in this context, Dempsey must show his protected speech
was "a substantial or motivating factor" in Omaha's failure to hire. Davison v. City
of Minneapolis, 490 F.3d 648, 656–57 (8th Cir. 2007). Dempsey argues he has shown
causation because Omaha personnel (1) repeatedly assured him they were working
diligently to find him a position, (2) repeatedly assured him his prospects were good,
and (3) rapidly changed their views towards him following his protected speech. He
points to his unique treatment among all Elkhorn employees as the only employee
denied a position with Omaha for the purported reason that no position was available.
He identifies, as listed above, several police-officer positions that Omaha filled after
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his protected speech. He also cites Marfisi's deposition testimony in which Marfisi
stated that, shortly after the protected speech, no one at Omaha was making efforts to
place Dempsey. Dempsey notes that Marfisi's statement is contradicted by Thorson's
statements to Dempsey at their March 2007 meeting.

In response, Omaha argues it worked diligently to find a position for Dempsey
but believed he would not accept an entry-level position. Omaha's argument in this
regard does not shield it from Dempsey's claim. In the present context, we may not
view the facts in any light other than that favorable to Dempsey, and Dempsey did not
tell any of the personnel at Omaha that he would not accept an entry-level position.
Rather, he told Police Chief Warren he could not work in a cruiser. Further, the
record does not reflect which positions with the Omaha Police Department did and did
not require work in a cruiser or were deemed entry-level positions. Also, the various
positions Dempsey identifies as having been filled after February 23, as listed above,
include different officer rankings. Dempsey is entitled to all reasonable inferences,
and the reasonable inference from the different officer rankings is that the rankings
are meaningful such that only one of the rankings can be deemed entry level.
Accordingly, Dempsey has demonstrated that Omaha filled several non-entry-level
officer positions for which he undisputedly was qualified, see supra n.6, after his
protected speech.7

Regarding the apparent shift in attitudes after the protected speech, we believe
timing is meaningful for the analysis of causation in this case. While timing alone
often is not convincing evidence of causation, timing carries weight in some contexts
especially when accompanied by other evidence. See Davison, 490 F.3d at 656.
Here, the Chief of Police told Dempsey it would be "no problem" to find Dempsey a

7
The dissent suggests that the failure to hire Dempsey may relate to making him
a more credible witness in the police officer's litigation. There is nothing in the record
suggesting the City of Omaha ever expressed that reason for its failure to hire
Dempsey.
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job, and the Human Resources Director said he thought Dempsey would receive a job.
This evidence strongly suggests attitudes changed rapidly due to an intervening event.
Timing is a compelling factor in Dempsey's favor, then, when viewed in the context
of Omaha's unique treatment of Dempsey relative to all other Elkhorn employees and
when viewed against Omaha's contemporaneous filling of several non-entry-level
officer positions.

Viewed in its entirety, we believe the record would permit a reasonable juror
to conclude animus based upon Dempsey's comments played a substantial or
motivating factor in the decision to deny him employment.

D. Qualified Immunity

Although we hold summary judgment was improper as to Dempsey's First
Amendment Claim, we hold the individual defendants are entitled to qualified
immunity. "Qualified immunity shields a government official from liability when his
conduct does not violate 'clearly established statutory or constitutional rights of which
a reasonable person would have known.'" Krout v. Goemmer, 583 F.3d 557, 564 (8th
Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In assessing
whether rights are "clearly established," we must define the rights at issue with
sufficient precision to capture the material circumstances of a case. See Williams v.
Jackson, 600 F.3d 1007, 1014 (8th Cir. 2010). Here, unique questions occupy the core
of the dispute and the contours of speech control were by no means clearly established
in the context of a contested annexation. Without belaboring the point, we simply
cannot say that reasonable officials necessarily would have known their actions were
prohibited.

III. Conclusion

We affirm in part, reverse in part, and remand for further proceedings not
inconsistent with this opinion.
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LOKEN, Circuit Judge, dissenting.

I respectfully dissent for two distinct reasons.

First, the majority commits a cardinal circuit-court sin when it refuses to follow
controlling Supreme Court precedent. The Court’s opinion in Garcetti v. Ceballos,
547 U.S. 410, 421 (2006), included an explicit holding:

We hold that when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.

(Emphasis added.) Unwilling to reach the result that holding commands in this case,
the majority substantially limits the holding to discipline by the employee’s employer.
This we may not do, which is reason enough to dissent.

Moreover, I see no sound reason to arbitrarily limit Garcetti in this manner.8
Though the disciplining employer in Garcetti was the plaintiff’s employer, as will
usually be the case, Garcetti’s underlying rationale is equally applicable when a public
employee’s statements made pursuant to his official duties have “some potential to
affect” the operations of another public employer, which then takes action the
employee claims is retaliatory. 547 U.S. at 418. The majority concedes that Garcetti
should bar a public employee’s First Amendment retaliation claim that he was
dismissed from a multi-agency task force because he disagreed with or refused to obey
an order, even if the agency controlling the task force’s personnel decisions was not,
for other purposes, the employee’s employer. Ante at 12-13. This principle applies

8
Note that, under the majority’s view, Dempsey’s speech was protected when
Omaha failed to hire him, but under Garcetti, the First Amendment would have
provided no protection if Elkhorn had fired him for the exact same speech.
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as well when two government entities are on the eve of implementing a consolidation
or annexation, and a manager-level employee of the entity being annexed makes
statements pursuant to his official duties that the annexing entity considers contrary
to its interest in providing the public with uninterrupted government services. As the
Court explained, public employers must be afforded “sufficient discretion to manage
their operations,” including the authority to ensure that employee communications are
“accurate, demonstrate sound judgment, and promote the employer’s mission.” Id.
at 422-23. In my view, Garcetti clearly applies to Dempsey’s First Amendment
claims against the City of Omaha.9

Applying Garcetti, Dempsey’s speech here at issue was “not protected by the
First Amendment if it ‘owes its existence’ to his professional responsibilities.” McGee
v. Pub. Water Supply, Dist. # 2, 471 F.3d 918, 921 (8th Cir. 2006), quoting Garcetti,

9
Surprisingly, the majority posits that Garcetti and Pickering v. Bd. of Educ.,
391 U.S. 563 (1968), address the same issue, so if one does not apply, neither does the
other. Ante at 9-14. This is wrong. Under Pickering, a court first asks whether the
public employee spoke as a citizen on a matter of public concern. If the answer is no,
the employee has no cause of action because, in that circumstance, “government
officials should enjoy wide latitude in managing their offices, without intrusive
oversight by the judiciary in the name of the First Amendment.” Connick v. Myers,
461 U.S. 138, 146 (1983). Garcetti held that a public employee’s speech pursuant to
his official duties is not speech as a citizen and is therefore unprotected. But if
Garcetti does not apply, and if the speech was on a matter of public concern, then a
court must apply the Pickering balancing test to determine whether the speech is
protected by the First Amendment, including “full consideration of the government’s
interest in the effective and efficient fulfillment of its responsibilities to the public.”
Connick, 461 U.S. at 150; see Shands v. City of Kennett, 993 F.2d 1337, 1344-46 (8th
Cir. 1993), cert. denied, 510 U.S. 1072 (1994). Were I to reach the question, I would
conclude that Dempsey’s speech is unprotected under Pickering balancing, which is
“a question of law, and thus, is readily susceptible to summary judgment disposition.”
Bausworth v. Hazelwood Sch. Dist., 986 F.2d 1197, 1198 (8th Cir. 1993) (citation
omitted). Footnote 4 and the text preceding that footnote in the majority opinion, ante
at 14, are completely at odds with these principles.
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547 U.S. at 421. As the majority concedes, his February 28 statements to Human
Resources Director Marfisi are a paradigmatic example of unprotected employee
speech under Garcetti. The statements -- telling Marfisi it was “unprofessional,”
“wrong,” and a violation of “due process” to effectively terminate the seven officers
before annexation -- were Dempsey’s explanation for his refusal to obey a command
that he take internal administrative action as Elkhorn Chief of Police. Dempsey
testified that his duties included “trying to determine the best way to facilitate [the
annexation] process.” He admitted that, on February 28, Marfisi “talked to me as
though I was an employee” and gave “directives.” Without question, the statements
were made pursuant to his official duties, owed their existence to his professional
responsibilities, and therefore were not insulated from employer discipline by the First
Amendment. See Kozisek v. County of Seward, 539 F.3d 930, 937 (8th Cir.
2008); Bradley v. James, 479 F.3d 536, 538 (8th Cir. 2007); McGee, 471 F.3d at 921.

Dempsey’s earlier public statements to Omaha World Herald reporters raise a
somewhat different question. In Garcetti, the Court gave as an example of public
employee statements that are outside the course of official duties and therefore eligible
for First Amendment protection, “writing a letter to a local newspaper.” 547 U.S. at
423. However, statements to the press will be pursuant to official duties under
Garcetti when, for example, a department head speaks to the press about matters
involving his department “as the public face of the Department,” or “when a
government employee answers a reporter’s questions involving matters relating to his
employment [in] circumstances in which the employee’s answers will take on the
character of ‘[o]fficial communications.’” Foley v. Town of Randolph, 598 F.3d 1,
7-8 (1st Cir. 2010), quoting Garcetti, 547 U.S. at 422; see Tamayo v. Blagojevich, 526
F.3d 1074, 1091-92 (7th Cir. 2008); Nixon v. City of Houston, 511 F.3d 494, 498-99
(5th Cir. 2007), cert. denied, 553 U.S. 1065 (2008).

Here, Dempsey did not contact the press as a citizen to publicly criticize
Omaha’s hiring process, as the teacher did in Pickering, the example cited in Garcetti.
Rather, he testified that he responded to reporters’ inquiries. “I made the
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statements . . . because I was asked the question. And I assume I was asked the
question because I was Chief of Police.” The questions involved a matter internal to
a publicly contested annexation process. Managerial comment about the internal
dispute was certain to be newsworthy, a situation in which “[e]mployers have
heightened interests in controlling speech [to] ensure that their employees’ official
communications are accurate, demonstrate sound judgment, and promote the
employer’s mission.” Garcetti, 547 U.S. at 422-23. In these circumstances, our
decision applying Garcetti in Bonn v. City of Omaha, 623 F.3d 587, 593 (8th Cir.
2010), should be controlling on this panel:

Bonn has no claim against the appellees based on their reactions
to her comments to the media, because she was not speaking as a citizen
when she made those remarks. Bonn spoke to the media pursuant to her
official duties as the Public Safety Auditor. She acted in response to
media inquiries . . . and the media identified her as a public official rather
than a private citizen. Bonn explained . . . that throughout her
employment, she often spoke with the media “to . . . increase public
confidence . . . and promote public awareness.” It is thus clear from
Bonn’s own averments that her job duties included speaking to the media
about her work . . . and that her comments to the media . . . were made
in her official capacity.

Second, I dissent from the majority’s superficial analysis of the adverse
employment action question. The opinion simply asserts there is “no meaningful
distinction between Dempsey seeking employment with Omaha and the plaintiff in
Perry [v. Sinderman, 408 U.S. 593 (1972),] seeking employment for the start of a new
school year.” Ante at 20. But this ignores the Supreme Court’s caution “that
expression related to academic scholarship or classroom instruction [may] implicate
additional constitutional interests that are not fully accounted for by this Court’s

-28-
customary employee-speech jurisprudence.” Garcetti, 547 U.S. at 425; see Keyishian
v. Board of Regents, 385 U.S. 589, 603 (1967).10

This case, by contrast, involves a run-of-the-mine decision not to hire an
applicant for public employment. Rather than accommodate the interests of public
agencies in hiring competent, effective staff, the majority provides a roadmap for the
wholesale transfer of public-sector hiring decisions from agency officials to the First
Amendment courtroom -- a prospective worker need only apply for a public job, call
a press conference and declare the agency to be rife with incompetence and
mismanagement that he intends to redress, and then sue when he does not get the job,
claiming the refusal to hire was based upon protected speech. This case is a less
extreme illustration of the problem. When Dempsey made his comments to the media,
the seven Elkhorn police officers not being hired had hired an attorney. Litigation was
imminent. Dempsey’s public comments, criticizing Omaha from his vantage point as
the plaintiffs’ supervising officer, made him a valuable witness for Omaha’s litigation
adversaries. Must Omaha hire Dempsey, at the supervisory level his experience
otherwise warranted,11 and thereby give him heightened credibility that would
adversely affect the City in litigation and lead to internal disruption and controversy?
Even if Dempsey’s speech was protected from employer discipline, the protection
should not insulate him from a refusal to hire.

10
The majority also relies on Rutan v. Repub. Party of Ill., 497 U.S. 62 (1990),
for its conclusion that the First Amendment routinely applies to failure-to-hire claims.
In Rutan, the Court dealt with the unique First Amendment issues raised by a series
of political patronage cases.
11
Omaha adopted the policy that it would only offer qualified Elkhorn police
officers entry-level positions in the Omaha Police Department, primarily to avoid
collective bargaining strife with the union representing Omaha police officers.
Dempsey advised that his age (62) and health would preclude “work in a cruiser car,”
but he would like to work for Omaha at a comparable pay level ($75,000 per year) for
two or three more years.
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 In my view, it is particularly unfortunate, and more than a little ironic, that the
majority decrees an unprecedented expansion of judicial oversight of public-sector
hiring at a time when the nation’s voters are demanding greater accountability from
the elected officials who supervise and manage government employees. The
majority’s decision presumably applies to the hiring of legislative aides as well as
police-department executives. I strongly dissent from this excessive judicial
interference with the operation of the political branches. I would affirm on the ground
that the speech on which Dempsey’s claim is based was not insulated from employer
discipline by the First Amendment because it was made pursuant to his official duties
as a public employee within the meaning of Garcetti, 547 U.S. at 421.

______________________________

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