F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 3 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
RICK D. BURNS,
Plaintiff-Appellant,
v.
No. 02-3121
BOARD OF COUNTY
COMMISSIONERS OF JACKSON
COUNTY, KANSAS; EDWARD V.
BRUNS; JOHN T. GRAU; ELLEN
SCHIRMER,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 00-CV-4119-SAC)
Deanne Watts Hay (Stanley R. Parker with her on the briefs), Parker & Hay,
L.L.P., Topeka, Kansas for the Plaintiff-Appellant.
J. Steven Pigg, Fisher, Patterson, Sayler & Smith, L.L.P., Topeka, Kansas for the
Defendants-Appellees.
Before LUCERO, BALDOCK and McCONNELL, Circuit Judges.
LUCERO, Circuit Judge.
This civil rights appeal raises the following notable issue: whether
deposition corrections are subject to a “sham affidavit” analysis. We answer this
question in the affirmative. As to the merits of plaintiff’s constitutional
challenge, arising from the termination of his employment with the Jackson
County, Kansas Road and Bridge Department (the “Department”), we conclude
that plaintiff has failed to show a genuine issue of material fact as to whether his
termination was racially motivated in violation of the Equal Protection Clause of
the Fourteenth Amendment, or intended to punish speech protected by the First
Amendment. Thus, the district court properly granted summary judgment to the
defendants. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
I
Rick Burns, the plaintiff in the instant case, is one-quarter Native American
and an enrolled member of the Pottawatomie Indian Tribe. From 1991 until
January 28, 2000, Burns was employed by the Department, first as a truck driver
and then as a road-grader operator. In November 1999, Burns’s supervisor Ed
Bruns wrote to the Department employees reminding them of the time they were
required to be on the job and that travel time was not compensated. A month
later, Burns and several other Department employees met with County Counselor
Ed Dunn to discuss whether they would be covered by workers’ compensation
insurance for any accidents that occurred on the way to work. During this
meeting, Burns allegedly made a remark about the County Commissioners to the
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effect that “you can’t teach the dumb son of a bitches anything.” (1 Appellant’s
App. at 152.)
Following this meeting with Dunn, supervisor Ed Bruns implemented a new
pay plan that divided employees into “A” and “B” categories, with the “A”
category employees receiving higher pay. Some employees, including Burns,
believed that Bruns had placed the employees who went to talk to Dunn in the
“B” category because they were “troublemakers.” (1 id. at 86.) Burns confronted
Bruns about the new pay plan, but Bruns provided no explanation.
On January 24, 2000, County Commissioner John Grau came to Burns’s
house at Burns’s request, to discuss certain concerns Burns had regarding the
Department. In addition to the new pay plan, Burns was concerned about (1) why
the Department had traded a bulldozer for a Caterpillar and (2) why the
Department had traded a Ford pickup for a Chevy pickup. Burns considered it
strange that the Department purchased the new Caterpillar without testing it first.
Regarding the pickup trade, Burns considered it suspicious that the bridge
foreman, who had often ridden in the old Ford pickup, purchased the Ford when
the Department put it up for sale.
At his meeting with Grau, Burns began by discussing the equipment
purchases. The conversation then turned to the new pay plan, and Burns asked
Grau who was responsible for the decision. Grau responded “you can blame it on
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me.” Pressed further by Burns, Grau explained that “we all made it.” (1 id. at
78.) By all accounts, Burns then became angry and called Grau a “lying
motherfucker.” (Appellant’s Br. at 4; Appellees’ Br. at 5.)
What happened next is disputed by the parties. Burns claims that Grau
lunged at him, backing Burns up against Grau’s truck, and Burns put up his hand
“to keep him away.” (1 Appellant’s App. at 78.) Burns also alleges that Grau
called him a “no good Indian.” (1 id.) George Uhl, another employee who was
present during the meeting between Grau and Burns, confirms Burns’s account of
the altercation. Grau gives a different account of events, 1 claiming that Burns was
the aggressor and that Burns grabbed Grau in the neck and shoulder area. Grau
denies calling Burns a “no good Indian.” (1 id. at 181.) Both parties agree that
the rest of the conversation was less heated and the two men parted in a seemingly
amicable manner.
Following this altercation, Grau called supervisor Ed Bruns and reported
what had happened, telling Bruns “that Rick had asked him to stop by and he’d
stopped by and Rick got hot and cussed him and calling him names [sic] and
grabbed him.” (1 id. at 124.) Grau told Bruns what profane epithet Burns had
1
Because this case was decided at the summary judgment stage, we must
presume that Burns’s version of events is correct, but Grau’s version is relevant
inasmuch as supervisor Bruns relied on Grau’s account in deciding to terminate
Burns.
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used, and explained that Burns had been the aggressor, grabbing Grau close to his
neck and shoulder. Grau explained to Bruns that Burns was upset about the pay
plan and the equipment purchases, and told Bruns that Uhl had been present and
shared some of the same concerns. On January 28, Bruns met in person with
Grau, bridge foreman Terry Mick, and County Counselor Dunn. Grau related the
altercation in more detail, but said nothing about having called Burns a “no-good
Indian.” (1 id. at 131.)
After this meeting, supervisor Bruns decided to terminate Burns. On
January 28, 2000, Burns received the following letter from Bruns:
The actions that you were involved in with Jackson County
Commissioner John Grau on January 24, 2000 near your home, were
of such a serious nature as to result in the immediate termination of
your employment with the Jackson County Road and Bridge
Department.
Such actions as reported to me would constitute gross
misconduct, the threatening or committing of physical violence
against the person of John Grau, and other violations of your
employment.
I want to advise you that you may have a hearing before the
Board of County Commissioners concerning this termination of your
employment. If you desire a hearing, please request one within ten
(10) days upon the receipt of this letter by calling the Jackson County
Clerk’s office.
(1 id. at 117.) Supervisor Bruns never indicated that he was irritated by the fact
that Burns or anyone else had complained about trading a pickup truck, the
purchase of a bulldozer, or the pay plan.
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Burns requested, and received, a post-termination hearing before the
Jackson County Board of Commissioners (“Board”), held on February 14, 2000.
Grau, the Chairman, turned the meeting over to Commissioner Ellen Schirmer
because he had been involved in the incident, but Grau did not abstain from
voting. Before voting, the Commissioners consulted the minutes from a previous
meeting, at which the Board had delegated to the Department supervisor the
power to hire and fire Department employees. After the minutes were reviewed,
Commissioner Ogden “moved to not terminate Rick Burns,” but the motion “died
for the lack of a second.” (2 id. at 372.) Commissioner Grau then “moved to
terminate Rick Burns. Ellen Schirmer seconded and the motion carried 2/1.
[Ogden] voted against the motion.” (2 id.) Thus, Burns’s termination was upheld
by a two-to-one vote. 2
After the Board declined to reinstate him, Burns filed suit under 42 U.S.C.
§§ 1981 and 1983 against the Board, supervisor Bruns, and Commissioners Grau
and Schirmer. In this suit, Burns claims that his discharge was in retaliation for
his exercise of First Amendment rights and/or on account of his Native American
heritage and therefore a violation of the Equal Protection Clause of the Fourteenth
2
As discussed below, we conclude that, because supervisor Bruns had the
authority to terminate Burns without approval from the Board, and exercised that
authority, the issue before the Board at Burns’s post-termination hearing was
whether to reinstate Burns following his termination.
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Amendment. 3 Defendants moved for summary judgment, which was granted by
the district court. Burns now appeals the grant of summary judgment to the
defendants.
II
“We review the district court’s grant of summary judgment de novo,
applying the same legal standard used by the district court.” Simms v. Okla. ex
rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th
Cir. 1999). Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
“When applying this standard, we view the evidence and draw reasonable
inferences therefrom in the light most favorable to the nonmoving party.” Simms,
165 F.3d at 1326. However,
[a]lthough the movant must show the absence of a genuine issue of
material fact, he or she need not negate the nonmovant’s claim.
Once the movant carries this burden, the nonmovant cannot rest upon
his or her pleadings, but must bring forward specific facts showing a
genuine issue for trial as to those dispositive matters for which he or
she carries the burden of proof. The mere existence of a scintilla of
3
Burns also claimed that his termination was a violation of due process,
but the district court rejected this argument because Burns did not have a legally
protected property interest in his employment. Burns does not challenge this
ruling on appeal.
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evidence in support of the nonmovant’s position is insufficient to
create a dispute of fact that is genuine; an issue of material fact is
genuine only if the nonmovant presents facts such that a reasonable
jury could find in favor of the nonmovant. If there is no genuine
issue of material fact in dispute, we determine whether the district
court correctly applied the substantive law.
Id. (quotations and citations omitted). In First Amendment cases in particular,
“an appellate court has an obligation to make an independent examination of the
whole record in order to make sure that the judgment does not constitute a
forbidden intrusion on the field of free expression.” Schalk v. Gallemore, 906
F.2d 491, 494 (10th Cir. 1990) (quotation omitted).
III
We proceed to consider the merits of Burns’s claim under § 1983. Burns
raises two separate constitutional claims, which we now address. First, Burns
asserts that he was terminated because of his Native American ethnicity, in
violation of the Equal Protection Clause of the Fourteenth Amendment. The
district court rejected this argument, concluding that Burns had failed to show
intentional discrimination under the test articulated by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).
A
In reaching the conclusion that Burns was not terminated because of his
Native American ethnicity, the district court relied in part on an apparent
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concession made by Burns during his deposition. At his deposition, Burns was
questioned about the reasons for his termination, as follows:
Q. Do you think you were terminated because you’re
part Native American?
A. No.
Q. Why do you think you were terminated?
A. That’s the question I never really ever get answered?
Q. What’s your own opinion, though? Why do you
believe you were terminated? Do you think it was
because you called Grau a lying motherfucker?
A. Yeah, I’d say so.
(1 Appellant’s App. at 106 (emphasis added).) In his deposition corrections filed
pursuant to Federal Rule of Civil Procedure 30(e), Burns changed the answers
underlined above to “No, I don’t think that was the only reason,” and “Yeah, I’d
say that was part of it.” (1 id. at 110.) The district court disregarded Burns’s
“attempt to rewrite portions of his deposition,” citing Franks v. Nimmo, 796 F.2d
1230 (10th Cir. 1986), and other cases. (2 id. at 509.) Franks and the other cases
cited by the district court deal with what are generally referred to as “sham
affidavits.”
“There is authority for the proposition that in determining whether a
material issue of fact exists, an affidavit may not be disregarded because it
conflicts with the affiant’s prior sworn statements.” Franks, 796 F.2d at 1237;
see also Miller v. A.H. Robins Co., 766 F.2d 1102, 1104 (7th Cir. 1985) (holding
that “[a]n inconsistent affidavit may preclude summary judgment . . . if the affiant
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was confused at the deposition and the affidavit explains those aspects of the
deposition testimony”); 10B Charles Alan Wright et al., Federal Practice &
Procedure § 2738, at 334 (“[A] witness’ affidavit will not be automatically
excluded because it conflicts with the witness’ earlier or later deposition.”). We
will disregard a contrary affidavit, however, when it “constitutes an attempt to
create a sham fact issue.” Franks, 796 F.2d at 1237. Factors to be considered in
determining whether an affidavit presents a sham issue include “whether the
affiant was cross-examined during his earlier testimony, whether the affiant had
access to the pertinent evidence at the time of his earlier testimony or whether the
affidavit was based on newly discovered evidence, and whether the earlier
testimony reflects confusion which the affidavit attempts to explain.” Id.
Burns argues that Franks and other cases dealing with “sham affidavits” are
not relevant to the instant case, because he modified his statements not in a
subsequent affidavit, but in an errata sheet submitted pursuant to Federal Rule of
Civil Procedure 30(e). We reject this distinction. In the recent case of Garcia v.
Pueblo Country Club, 299 F.3d 1233 (10th Cir. 2002), this court discussed the
purpose of Rule 30(e). Quoting Greenway v. Int’l Paper Co., 144 F.R.D. 322, 325
(W.D. La. 1992), we noted that “[t]he Rule cannot be interpreted to allow one to
alter what was said under oath. If that were the case, one could merely answer
the questions with no thought at all then return home and plan artful responses.
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Depositions differ from interrogatories in that regard. A deposition is not a take
home examination.” Garcia, 299 F.3d at 1242 n.5 (quotation omitted). We stated
that “[w]e do not condone counsel’s allowing for material changes to deposition
testimony and certainly do not approve of the use of such altered testimony that is
controverted by the original testimony.” Id.
We see no reason to treat Rule 30(e) corrections differently than affidavits,
and we hold that Burns’s attempt to amend his deposition testimony must be
evaluated under Franks. None of the three Franks factors is satisfied in the
instant case. First, Burns was cross-examined at his deposition. Second, Burns’s
corrections were not based on any newly discovered evidence. Third, although
Burns asserts that he was confused at his deposition, his answers to the direct
questions posed by counsel do not reflect any obvious confusion—as opposed to
indecisiveness or inconsistency—that the corrections would need to clarify. Thus,
the district court correctly disregarded Burns’s testimony. See Franks, 796 F.2d
at 1237.
Disregarding Burns’s deposition corrections, however, does not
automatically lead to the conclusion that he conceded his case in the uncorrected
answers. Earlier in his deposition, Burns was asked if he told Commissioner
Ogden why he was terminated:
Q. Did you tell [Ogden] why you were terminated?
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A. I don’t really know why I was terminated.
Q. The letter tells you that you were terminated for your conduct on the –
in the meeting with Mr. Grau on the 24th, doesn’t it?
A. Yeah, but that, that ain’t what happened.
(1 Appellant’s App. at 82 (emphasis added).) At this point, Burns testified that
his actions at the meeting with Grau were not the cause for his termination. 4
Burns’s testimony at his deposition was internally inconsistent, and, given the
summary judgment posture of this case, we must view the evidence in the light
most favorable to Burns. See Simms, 165 F.3d at 1326. Thus, we hold that Burns
did not concede his case at his deposition, and we now evaluate whether Burns
has raised a genuine issue of material fact as to the alleged racial motivation for
his termination.
B
“A plaintiff alleging discrimination on the basis of race may prove
intentional discrimination through either direct evidence of discrimination (e.g.,
oral or written statements on the part of a defendant showing a discriminatory
motivation) or indirect (i.e., circumstantial) evidence of discrimination.”
4
It might be argued that Burns’s statement that “that ain’t what happened”
refers solely to his alleged assault on Grau, and not to the “lying motherfucker”
comment. Under this view, Burns did not retract his statement that he was fired
for using a profane epithet. Because we must view the evidence in the light most
favorable to Burns, however, we conclude that Burns testified that his entire
altercation with Grau, including the profane epithet, was not the cause of his
termination.
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Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000).
Burns argued before the district court that Grau’s alleged statement that he was a
“no good Indian,” together with two remarks about Indians allegedly made by
Schirmer, constituted direct evidence of discrimination. The district court
rejected this argument, and Burns does not challenge this ruling on appeal.
A plaintiff who lacks direct evidence of discrimination may show
discrimination through indirect evidence by relying on the framework articulated
by the Supreme Court in McDonnell Douglas, 411 U.S. at 802–04. While
McDonnell Douglas involved a Title VII claim, its burden-shifting analysis
applies equally to § 1983 claims of race discrimination in violation of the Equal
Protection Clause. English v. Colo. Dep’t of Corr., 248 F.3d 1002, 1007 (10th
Cir. 2001).
“In order to survive summary judgment, a plaintiff relying on McDonnell
Douglas bears an initial burden of establishing a prima facie case intended to
eliminate the most common nondiscriminatory reasons that might account for the
adverse employment action.” Id. at 1008. If a prima facie case is made, the
burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for terminating the plaintiff. Id. “If the defendant
successfully meets its burden of production, the burden shifts back to the plaintiff
to put forth evidence sufficient to allow a jury to find that the defendant’s reason
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is pretextual, e.g., that it is unworthy of belief.” Id. This “requires a showing
that the tendered reason for the employment decision was not the genuine
motivating reason, but rather was a disingenuous or sham reason.” McKnight v.
Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998) (quotation omitted).
Defendants do not dispute that Burns has made a prima facie case, and the
burden accordingly shifts to defendants to articulate a legitimate,
nondiscriminatory reason for the discharge. Defendants point to testimony by
supervisor Bruns that he fired Burns for his altercation with Grau, as well as the
termination letter citing Burns’s alleged threats of violence or actual violence
against Grau as a reason for his termination. This is a legitimate,
nondiscriminatory reason for discharge. Thus, the question is whether the
proffered reason is pretextual. As evidence of pretext, Burns points to anti-Indian
comments allegedly made by Commissioner Schirmer as well as the “no good
Indian” comment allegedly made by Commissioner Grau.
Burns cites two comments attributed to Commissioner Schirmer as
supporting his contention that he was terminated on account of his race. First,
Burns testified at his deposition that someone had told him that Schirmer had said
“[s]omething about the damn Indians or something.” (1 Appellant’s App. at 105.)
Burns did not know who had actually overheard this alleged comment; in any
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case, it is hearsay and the district court correctly disregarded it. 5 Second, Burns
points to another comment attributed to Schirmer by Commissioner Ogden, that
“there is [sic] two Native Americans running in the third district, so the third
district must not really care.” (2 id. at 462.) This statement is more troubling.
Schirmer made this comment in the context of explaining to Ogden why she
thought it was inappropriate for him to serve both on the tribal council and on the
Board, due to a conflict of interest. Based on this context, the district court
determined that Schirmer’s comment “cannot reasonably be construed to be
racially derogatory.” (2 id. at 505.) We disagree. Because this case comes to us
at the summary judgment stage, we are required to view the evidence and draw
reasonable inferences therefrom in the light most favorable to Burns. Simms, 165
F.3d at 1326. Commissioner Ogden, a member of the Pottawatomie tribe,
testified that he was “upset” by Schirmer’s comment, and noted that “we are kind
of in a turmoil of . . . I don’t want to say prejudice but I guess it is.” (2
Appellant’s App. at 462.) Thus, Ogden apparently took Schirmer’s comment to
5
If Burns himself had heard Schirmer make this comment, it might be
admissible as an admission by a party opponent. Fed. R. Evid. 801(d)(2).
However, the comment was reported to Burns by a third party, Jim Batiste, who
may or may not have heard it himself. Hearsay within hearsay is admissible only
“if each part of the combined statements conforms with an exception to the
hearsay rule.” Fed. R. Evid. 805. Burns identifies no exception to the hearsay
rule that would apply to Batiste’s out-of-court statement.
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reflect bias or prejudice against Native Americans, and we must infer that
Schirmer’s comment did reflect such bias.
Assuming that Schirmer made a prejudicial remark about Native Americans
to Ogden, however, does not show that her stated reasons for voting to uphold
Burns’s termination were pretextual. A plaintiff who relies on circumstantial
evidence of racial animus to show pretext must “show some nexus between [the]
circumstantial evidence and [the] decision to terminate him.” English v. Colo.
Dep’t of Corr., 248 F.3d 1002, 1010 (10th Cir. 2001). In the instant case,
Schirmer’s comments were not directed specifically at Burns, and there is no
other evidence that her decision not to reinstate Burns was motivated by racial
animus. As discussed below, Schirmer testified that she voted to uphold Burns’s
termination because of his offensive language and alleged intimidation of
Commissioner Grau. Burns has not shown that Schirmer’s explanation for why
she voted against reinstating Burns was “a disingenuous or sham reason.”
McKnight, 149 F.3d at 1129 (quotation omitted).
This leaves the “no good Indian” comment allegedly made by Grau. Grau’s
comment clearly reflects racial animus, and, because it was directed at Burns,
there is arguably a nexus between the comment and Grau’s vote to uphold Burns’s
termination. Nonetheless, Burns has not shown that the outcome of the hearing
would have been different had Grau recused from voting. While Burns alleges
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that a one-to-one vote (with Schirmer voting for termination and Ogden voting
against) would have resulted in his reinstatement, he points to no evidence in the
record that this was the rule followed by the Board. At a previous meeting, the
Board had delegated to supervisor Bruns the right to hire and fire Department
employees. 6 To avoid rendering Bruns’s delegated authority meaningless, the
only reasonable inference must be that, short of a majority vote to reinstate Burns,
Bruns’s decision would stand. It would be unreasonable to infer that, given
Bruns’s delegated authority, a tie vote would suffice to overturn his decision.
Moreover, Commissioner Schirmer testified at her deposition that “if it was one
and one, I believe the decision would stand.” (1 Appellant’s App. at 208.) Burns
introduced no evidence to refute Schirmer’s testimony. Thus, we conclude that
the issue before the Board was whether to reinstate Burns, and a tie vote would
not have changed the outcome.
In short, Burns has failed to raise a genuine issue of material fact as to
whether he was terminated on account of his Native American ethnicity. Burns
has failed to show that Bruns terminated him on account of his race or that
6
As discussed above, at the post-termination hearing, the Board consulted
the minutes from a previous meeting held February 15, 1999, when the Board by a
two-to-one decision “gave the Road and Bridge Supervisor the right to hire and
fire Road & Bridge employees.” (2 Appellant’s App. at 372.) Commissioner
Grau later confirmed at his deposition that supervisor Bruns had the authority to
fire Department employees without the approval of the Board.
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Schirmer’s stated reasons for upholding the termination were pretextual. Even if
we assume that Grau’s vote was motivated by racial animus, Burns has not
brought forward any evidence that the outcome would have been different had
Grau abstained from voting. We hold that the district court did not err in granting
summary judgment to the defendants on Burns’s Equal Protection claim.
IV
Burns’s alternative argument is that he was terminated in retaliation for
exercising his First Amendment rights. According to Burns, he was terminated
not for using a profane epithet and allegedly assaulting Grau, but for his
comments about possible favoritism in the Department (the new pay scale) and
possible impropriety regarding equipment purchases. A government employer
“cannot condition public employment on a basis that infringes the employee’s
constitutionally protected interest in freedom of expression.” Lytle v. City of
Haysville, 138 F.3d 857, 863 (10th Cir. 1998) (quoting Connick v. Myers, 461
U.S. 138, 142 (1983)). “Fighting words,” however, are not protected by the First
Amendment. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927 (1982). We
define “fighting words” as “epithets (1) directed at the person of the hearer, (2)
inherently likely to cause a violent reaction, and (3) playing no role in the
expression of ideas.” Cannon v. City & County of Denver, 998 F.2d 867, 873
(10th Cir. 1993). Burns’s profane epithet directed at Grau is a clear example of
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“fighting words” not entitled to First Amendment protection. During his meeting
with Grau, however, Burns also complained about equipment purchases and the
new pay plan. Burns’s speech about these topics may be protected by the First
Amendment.
A
In analyzing whether a public employer’s actions impermissibly infringe on
free speech rights, we apply the four-prong test articulated in Pickering v. Bd. of
Educ., 391 U.S. 563 (1968). 7 We first decide “whether the speech at issue
touches on a matter of public concern.” Schalk, 906 F.2d at 494 (citing Connick,
461 U.S. at 146). “Whether an employee’s speech addresses a matter of public
concern must be determined by the content, form, and context of a given
statement, as revealed by the whole record.” Connick, 461 U.S. at 147–48. In
determining whether the speech touches on a matter of public concern, we look to
7
The first three steps of the Pickering test are (1) whether the speech
touches on a matter of public concern, (2) whether the employee’s interest in
commenting on matters of public concern outweighs the interest of the state in
promoting the efficiency of the public service it performs through its employees,
and (3) whether the protected speech was a substantial or motivating factor
behind the adverse employment decision. See Gardetto v. Mason, 100 F.3d 803,
811 (10th Cir. 1996) (citing Pickering and its progeny). If these three factors are
met, (4) the burden shifts to the employer to establish that it would have reached
the same decision in the absence of the protected conduct. Id. In the instant case,
the district court concluded that factors (1) and (3) are not met, and did not reach
factors (2) or (4). Because, as discussed below, we agree with the district court
as to factor (3), we also do not reach factors (2) and (4).
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whether it can “be fairly considered as relating to any matter of political, social,
or other concern to the community.” Id. at 146. It is not sufficient that the topic
of the speech be of general interest to the public; “in addition, what is actually
said must meet the public concern threshold.” Schalk, 906 F.2d at 495.
Moreover, under our precedent, the speech must “sufficiently inform the issue as
to be helpful to the public in evaluating the conduct of the government.” Lee v.
Nicholl, 197 F.3d 1291, 1295 (10th Cir. 1999) (quotation omitted). It is not
necessary, however, for speech to be made publicly in order to qualify for First
Amendment protection. Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410,
415–16 (1979).
Finding Burns’s thoughts on the equipment purchases and the pay plan
insufficiently informative to be useful to the public, the district court held that
Burns’s speech did not touch on a matter of public concern. We agree with this
conclusion as to Burns’s comments on the purchase of the Caterpillar, 8 but we
part company with the district court as to Burns’s comments on the pickup trade
8
Burns had two concerns about the equipment purchases: (1) that the
Department bought a new Caterpillar without first trying it out, and (2) that the
pickup trade was improper. As to the Caterpillar, Burns offers no basis for his
suspicion that there was anything improper about that purchase. Burns’s speech
about the Caterpillar purchase could not “sufficiently inform the issue as to be
helpful to the public in evaluating the conduct of the government.” Lee, 197 F.3d
at 1295 (quotation omitted). Thus, we conclude that Burns’s speech on the
Caterpillar purchase did not touch on a matter of public concern.
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and the pay plan. Burns had a legitimate reason for suspecting that there was
some impropriety in the pickup trade: the bridge foreman, who often rode in the
Ford pickup, was willing to purchase it despite the fact that the Department’s
stated reason for selling it was that it was too “beat” and “wore out” to serve its
purpose. (1 Appellant’s App. at 77.) As to the pay plan, Supervisor Bruns had
discretion to decide how each employee should be classified, and he made this
decision based on performance evaluations, not seniority. Burns knew that
employees were being classified differently under the new plan, and he was
personally aware of the plan’s impact on Department morale. Moreover, Burns’s
suspicion that employees who met with County Counselor Dunn were punitively
classified as “B” employees was shared by Commissioner Ogden.
Viewing the facts in the light most favorable to Burns, we conclude that
Burns was justifiably concerned about the pickup trade and the pay plan. “Speech
which discloses any evidence of corruption, impropriety, or other malfeasance on
the part of city officials, in terms of content, clearly concerns matters of public
import.” Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988). Thus, we hold
that Burns’s speech regarding the pickup trade and the pay plan touched on a
matter of public concern.
B
As an alternative basis for granting summary judgment to the defendants on
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Burns’s First Amendment claim, the district court held that the third Pickering
factor, that the plaintiff’s protected speech “was a substantial or motivating factor
in the termination,” Bd. of County Comm’rs, Wabaunsee County, Kan. v.
Umbehr, 518 U.S. 668, 675 (1996), was not met. As the district court noted,
George Uhl, another Department employee, had spoken out publicly against
Department policies, 9 but Uhl was not terminated. This suggests that Burns was
not terminated because of his speech on similar topics.
Burns does not contest the district court’s finding that Uhl was not
terminated for speaking out on the same topics as Burns. Instead, Burns argues
that it is irrelevant whether other employees were not fired for speaking out
against the equipment purchases or the pay plan, because those other employees
were not Native Americans. By making this argument, however, Burns conflates
his First Amendment claim with his Equal Protection claim. As discussed above,
we conclude that Burns has failed to show that his termination was a result of
racial animus.
At oral argument, Burns’s counsel directed us to Schirmer’s deposition
testimony as support for Burns’s First Amendment claim. Burns contends that
Schirmer concedes in her deposition that she upheld Burns’s termination because
9
Uhl wrote a letter to a local newspaper about “purchases they make with
the County,” and attended “Commission meetings” at which he raised concerns
about Department pay scales and insurance policies. (1 Appellant’s App. at 220.)
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he criticized Commissioner Grau. Having reviewed this testimony, however, we
conclude that it raises no genuine issue of material fact as to whether Burns was
terminated for his speech. Schirmer did state that, in her view, Bruns “had the
power to fire [Burns]” because Burns “was disrespectful and intimidating to a
commissioner and I thought that was inappropriate.” (1 Appellant’s App. at 205.)
When asked whether it was appropriate to terminate Burns “because he talked to
John Grau individually rather than at a commission meeting,” however, Schirmer
responded, “Not that he talked to him. Intimidation is another thing.” (1 id.)
Schirmer was then asked whether Burns forfeited his “right to talk to elected
officials about his concerns” because he was a County employee, and she
responded, “I think if he doesn’t use appropriate language, that’s my feeling.” (1
id.) This testimony shows that Schirmer voted to terminate Burns not for his
protected speech, but for his alleged intimidation of Grau and the inappropriate
language he used.
Burns was not fired for speaking out against the new pay plan or the
equipment purchases. He was fired for hurling a profane epithet at a County
Commissioner and allegedly using physical force against him. Whether Burns
actually used such force is irrelevant, for Bruns and Schirmer thought that he did,
and it is their reason for firing him that matters. We conclude that there is no
evidence that Burns’s protected speech was a “substantial or motivating factor” in
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his termination. Umbehr, 518 U.S. at 675. The district court committed no error
in granting summary judgment to the defendants on Burns’s First Amendment
claim.
V
The judgment of the district court is AFFIRMED. 10
In his complaint, Burns claimed that the actions of the defendants
10
violated both 42 U.S.C. § 1981 and § 1983. In response, defendants argued that
§ 1983 provides the exclusive remedy in these circumstances, precluding a direct
action under § 1981. The district court agreed and granted summary judgment to
the defendants on Burns’s § 1981 claim.
There is a circuit split as to whether the 1991 amendments to § 1981
overruled Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989), in which the
Supreme Court held that “the express cause of action for damages created by
§ 1983 constitutes the exclusive federal remedy for violation of the rights
guaranteed in § 1981 by state governmental units.” Compare Fed’n of African
Am. Contractors v. City of Oakland, 96 F.3d 1204, 1214 (9th Cir. 1996) (holding
that § 1981, as amended in 1991, “contains an implied cause of action against
state actors, thereby overturning Jett’s holding that 42 U.S.C. § 1983 provides the
exclusive federal remedy against state actors for the violation of rights under 42
U.S.C. § 1981”), with Oden v. Oktibbeha County, 246 F.3d 458, 462–64 (5th Cir.
2001) (concluding that Jett was not overruled by the 1991 amendments), Butts v.
County of Volusia, 222 F.3d 891, 894 (11th Cir. 2000) (same), and Dennis v.
County of Fairfax, 55 F.3d 151, 156 n.1 (4th Cir. 1995) (same). We need not
reach this question in the instant case. Because Burns has failed to show that his
constitutional rights were violated, he has no claim under either § 1981 or § 1983,
and thus it is immaterial whether a direct cause of action lies under the former.
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