Cooper v. Town of Bar Nunn WY, (10th Cir. 2004)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DONALD A. COOPER,

Plaintiff-Appellee,

v.

TOWN OF BAR NUNN, WY,

Defendant,

and

CHARLES ANDERSON, individually

and in his official capacity as Bar

Nunn Fire Chief,

Defendant-Appellant.

No.
name="1">03-8035

(D.C. No. 02-CV-1072-B)

(D. Wyo.)

ORDER AND JUDGMENT
name="txt*">(*)

Before EBEL, ANDERSON, and

BRISCOE, Circuit Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Defendant-appellant Charles Anderson, Fire Chief for the Town of Bar

Nunn, Wyoming, has filed an interlocutory appeal from the district court's denial

of qualified immunity in a 42 U.S.C. § 1983 action. Donald A. Cooper filed the

civil rights complaint alleging defendants Anderson and Bar Nunn violated his

First Amendment free speech rights when Anderson suspended and ultimately

terminated him as a fireman in retaliation for his speaking about matters of public

health and safety. Anderson filed a motion for summary judgment alleging he

was entitled to qualified immunity. In a thorough, well-reasoned opinion, the

district court denied that motion. See Cooper v. Town of Bar Nunn, 257 F. Supp.

2d 1363 (D. Wyo. 2003). Anderson appeals, and we affirm.

"The denial of a summary judgment motion ordinarily is not an appealable

final order." Bass v. Richards, 308 F.3d 1081, 1086 (10th Cir. 2002). Thus, we

ordered Anderson to show cause why his appeal should not be dismissed for lack

of jurisdiction. A district court's denial of qualified immunity "is subject to

appeal, however, when the defendants are public officials asserting a qualified

immunity defense and the appealed issue is whether a given set of facts

establishes that defendants violated clearly established law." Id. Interlocutory

immunity appeals are limited to purely legal challenges, and may not turn on

questions of evidentiary sufficiency. See id. Anderson argues that he is entitled

to qualified immunity under the plaintiff's version of the facts, and his appeal

focuses on the legal issues of whether plaintiff's speech touched on a matter of

public concern and whether it was outweighed by the government's interest in

promoting efficient governmental services, see Gardetto v. Mason, 100 F.3d 803,

811 (10th Cir. 1996) (identifying these as legal questions), and whether the

constitutional right he allegedly violated was clearly established; thus, we

conclude that we have jurisdiction to hear this appeal, see DeAnzona v. City &

County of Denver, 222 F.3d 1229, 1233 (10th Cir. 2000) ("If the defendant argues

that [he] is entitled to qualified immunity under the plaintiff's version of the facts

because the plaintiff has not demonstrated a violation of clearly established law,

this Court may properly exercise jurisdiction over an interlocutory appeal."). "We

review the denial of a summary judgment motion raising a qualified immunity

defense de novo." Hulen v. Yates, 322 F.3d 1229, 1236 (10th Cir. 2003).

The district court opinion recites the relevant facts; thus, we only briefly

repeat them here. The Bar Nunn Fire Department conducted a prescribed burn on

a local ranch as a training exercise. Plaintiff was a member of the Bar Nunn Fire

Department and was an experienced wildland firefighter. Neither plaintiff nor

Anderson attended the burn. At the next Fire Department meeting, the

firefighters had an open forum to discuss and critique the burn. At the critique,

plaintiff asked if the firefighters had obtained a site-specific weather forecast and

was told they had not. He asked if the burn had performed as expected and was

told no fire behavior predictions had been calculated. He asked who in the room

had previous experience with prescribed burns, and only one or two Fire

Department members had. As the meeting concluded, plaintiff approached Bar

Nunn's Assistant Fire Chief, Charles Johnson, and told him he was amazed at

how they had conducted the burn; that they were fortunate there had been no

injuries or problems; that the burn had been an unnecessary risk; and that the

department should use plaintiff as a resource if it wished to conduct future

prescribed burns. Their conversation became loud.

Several days later, Anderson, who had not been at the critique, summoned

plaintiff to the fire station and told him he had heard complaints about plaintiff's

behavior at the meeting. Anderson immediately suspended plaintiff from the Fire

Department, stating he needed to investigate the matter, and warned plaintiff he

was subject to arrest for trespassing if he set foot in the station or answered any

fire calls. According to plaintiff, no Bar Nunn official ever told him he was off

suspension. A little over one year later, Anderson sent a letter to plaintiff stating

he was terminated from the Fire Department "[d]ue to our inability to resolve the

problem of the disruption that occurred last year at the critique of the training

exercise." Aplt. App. at 62. Plaintiff then initiated this suit.

It is well-established that a government employer "cannot condition public

employment on a basis that infringes the employee's constitutionally protected

interest in freedom of expression." Connick v. Myers, 461 U.S. 138, 142 (1983).

It is also "amply clear" that "public employee speech alleging a danger to public

health or safety is protected by the First Amendment." Lee v. Nicholl, 197 F.3d

1291, 1296 (10th Cir. 1999). We evaluate whether a public employee's speech is

constitutionally protected under the four-step test derived from Connick and

Pickering v. Board of Education, 391 U.S. 563 (1968). See Gardetto,

100 F.3d at

811. First, we "must determine whether the employee's speech can be 'fairly

characterized as constituting speech on a matter of public concern.'" Id. (quoting

Connick, 461 U.S. at 146). Second, if it can, we must then "balance the

employee's interest, as a citizen, in commenting upon matters of public concern

against 'the interest of the State, as an employer, in promoting the efficiency of

the public service[s] it performs through its employees.'" Id. (quoting

Pickering,

391 U.S. at 568). As noted above, these first two questions are legal in nature

and are for the court to resolve. See id. It is for a jury to resolve the remaining

two factual questions: whether plaintiff's protected speech was a substantial or

motivating factor in the adverse employment decision, and, if so, whether the

employer would have made the same employment decision in the absence of the

protected speech. See id.

The district court found that plaintiff's speech touched on matters of

sufficient public concern to merit constitutional protection, specifically speech

alleging a danger to public health or safety. See Cooper, 257 F. Supp. 2d at 1370.

Anderson argues on appeal that this finding was erroneous, asserting that none of

plaintiff's comments were matters of public concern, but rather were merely

matters of personal curiosity to him as a fireman. We agree, however, with the

district court that plaintiff's comments evidenced a concern for the safety of the

public, both in content and in the context of a public meeting called to critique

the burn. See Lee, 197 F.3d at 1295 (examining content and context of speech to

conclude it was related to public safety and was motivated by public concern).

Anderson argues that, because plaintiff was not present at the burn, his comments

did not "sufficiently inform the issue as to be helpful to the public in evaluating

the conduct of the government." Id. We disagree. Plaintiff's questions and

comments informed the public that the Bar Nunn firefighters had lit the prairie

without first obtaining predictions of fire behavior, fire travel speed, fire intensity

or a site-specific weather forecast, and that almost none of the participants had

experience with prescribed burns. Given plaintiff's experience as a firefighter

and his particular experience with wildland fires, his questions and comments

sufficiently informed the issue of the government's adherence to safety

procedures during the burn exercise to be helpful to the public, even though he

was not present at the burn. See Belcher v. City of McAlester, 324 F.3d 1203,

1208 n.6 (10th Cir. 2003) (noting that firefighter's viewpoints about proposed

purchase of a truck might be valuable to public, which lacked his expertise).

The district court next found that the government's interest in regulating

his speech to maintain an efficient workplace did not outweigh plaintiff's interest

in the protected speech. Anderson contends this finding was in error because

plaintiff's argument with Charles Johnson and his subsequent failure to

participate in Department meetings and training activities disrupted the official

functions of the Fire Department. This latter argument is based on Anderson's

assertion, contradicted by plaintiff, that he reinstated plaintiff shortly after the

suspension and terminated him because plaintiff failed to attend Department

meetings and activities. As discussed above, however, we must accept plaintiff's

version of the facts in this interlocutory immunity appeal. We conclude, for the

reasons stated by the district court, that there is little or no evidence that

plaintiff's questions and comments impaired discipline or co-worker harmony in

the Fire Department. See Cooper, 257 F. Supp. 2d at 1371 (noting evidence that

plaintiff did not disrupt the critique meeting in any way, and that all Department

members other than Johnson were willing to work with plaintiff). Anderson

failed to show that regulating or restricting plaintiff's speech was "necessary to

prevent the disruption of official functions or to insure effective performance by

the employee." Gardetto, 100 F.3d at 815 (quotation omitted).

Finally, Anderson contends plaintiff failed to show a violation of a clearly

established constitutional right. He argues that plaintiff's speech was not

constitutionally protected because it was not based on plaintiff's personal

knowledge of the prescribed burn, and he contends there is no clearly established

law discussing the level of personal knowledge required to give speech protected

status. His argument is not supported by law or fact. Anderson cites Mekss v.

Wyoming Girls' School, 813 P.2d 185 (Wyo. 1991), which does not hold, as he

contends, that speech is not entitled to constitutional protection if it is not based

on the employee's personal knowledge. Although the court in Mekss questioned

whether an employee's unsubstantiated accusation touched on a legitimate matter

of public concern under Connick, 461 U.S. at 146, the court ultimately assumed

for the sake of argument, without deciding the issue, that the speech met the

public concern test. 813 P.2d at 197-98. Moreover, plaintiff did not make

unsubstantiated accusations; rather, he asked questions about the conduct of the

prescribed burn, and, when the responses to his questions indicated a failure to

follow safety procedures, expressed his resulting safety concerns to Charles

Johnson. As noted above, it is clearly established in this circuit that "public

employee speech alleging a danger to public health or safety is protected by the

First Amendment," see Lee, 197 F.3d at 1296, and, under Connick,

plaintiff's

speech did touch on a legitimate matter of public concern. Thus, under plaintiff's

version of the facts, the district court correctly ruled that Anderson violated

clearly established law.

The judgment of the district court is AFFIRMED.

Entered for the Court

Stephen H. Anderson

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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