Peterson v. Williams ( 2022 )

Appellate Case: 20-4059 Document: 010110680258 Date Filed: 05/05/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 5, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
KEN PETERSON, an individual,
Plaintiff - Appellant,
v. No. 20-4059
(D.C. No. 4:19-CV-00062-DB)
RICHARD WILLIAMS, in his individual (D. Utah)
and official capacities; DOAJO HICKS, in
his individual and official capacities;
MICHAEL LACOURSE, in his individual
and official capacities; LYNN JOSEPH, in
her individual and official capacities;
DIXIE STATE UNIVERSITY, a public
collect of the State of Utah; JOHN DOES
I-X, in their individual and official
capacities; ROE ENTITIES I-X,
Defendants - Appellees.
--------------------------------------
FOUNDATION FOR INDIVIDUAL
RIGHTS IN EDUCATION,
Amicus Curiae.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, MORITZ, and EID, Circuit Judges.
_________________________________
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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After being fired from Dixie State University (“DSU”), Plaintiff Ken Peterson
sued his former employer and several of its employees. In his complaint, Peterson
alleged three causes of action pursuant to 42 U.S.C. § 1983, as well as two causes of
action under state law. The defendants moved to dismiss Peterson’s complaint, and
the district court granted the defendants’ motion. Peterson now appeals. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm but remand for amendment of the
judgment.
I.
a.
Peterson was a music professor at DSU from 2002 to 2018. He received
tenure in 2009. As part of his employment, he instructed students “in the vocal arts”
and “in music,” as well as assisted, “on an extracurricular basis, in the production and
staging of . . . musical performances.” App’x at 8.
In 2014, DSU fired one of its theater professors, Varlo Davenport, after a
student accused Davenport of injuring her during a classroom exercise. Davenport
appealed his termination through a DSU appeals process, and Peterson testified on
Davenport’s behalf. The appeal was unsuccessful, and DSU’s decision to terminate
Davenport was made final.
According to Peterson’s complaint, “Peterson questioned the correctness of
Davenport’s termination.” Id. at 9. “Specifically, Peterson questioned whether the
chair of Davenport’s department (Mark Houser) was competent in his leadership, and
whether the administration had acted in accordance with due process and good faith
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in its termination of Davenport.” Id. He “generally voiced his criticisms or concerns
through in-person conversations with members of his community.” Id. at 9. Peterson
did so, he alleges, as “a concerned member of the Southern Utah community, alarmed
at the potential that a state entity of considerable import in the community may have
been failing that community.” Id.On March 2, 2018, Peterson received an initial termination letter, which
suspended Peterson’s pay and prohibited him from DSU property until a final
determination was made. According to the letter, Peterson was being fired for
“professional incompetence, serious misconduct, or unethical behavior, and serious
violation of University rules and regulations.” Id. at 124. The main theme of the
allegations supporting Peterson’s termination was Peterson’s speech and conduct
relating to Houser. The letter asserted the following:
(1) Peterson wrongly “disclosed confidential information about . . .
Houser’s employment to unauthorized third persons, including
information about Houser’s tenure review process”;
(2) Peterson “improperly represented the Music [Department] in stating
to a third person that the Music and Theatre Department wanted Houser
‘terminated’”;
(3) Peterson wrongly “spoke on behalf of the Music Department telling
a third person that the Music Department was refusing to work with the
Theatre Department to produce musicals in retaliation for Houser
recommending that Davenport be terminated”;
(4) Peterson “slandered . . . Houser when he told a third person that
Houser is ‘destroying’ the Theatre Department, a direct impact on
Houser’s professional reputation”;
(5) Peterson “slandered . . . Houser and . . . [DSU President Richard]
Williams when he told a third person, loudly in a public place in the
presence of students and staff, that Houser and . . . Williams were
‘corrupt’ and had ‘conspired together against . . . Davenport’ by sending
‘secret correspondence’ to have . . . Davenport terminated so that
Houser could get tenure and promotion.”
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Id. Defendant Michael Lacourse, DSU’s Provost and Vice President of Academic
Affairs, signed the letter and copied Defendants Williams and Doajo Hicks, DSU’s
General Counsel.
Peterson requested a hearing in front of the Faculty Review Board (“FRB”) to
review his termination. The FRB ultimately determined that DSU failed to support
its accusations against Peterson by a preponderance of the evidence and
recommended reinstatement of Peterson. It also “concluded that Peterson should be
warned not to engage in ‘unbecoming comments about the university or its
administration.’” Id. at 11.
Dr. Elizabeth Hitch, the Associate Commissioner for Academic and Student
Affairs for the Utah System of Higher Education, reviewed the FRB’s decision. Dr.
Hitch “concluded that there was a preponderance of evidence as to several charges
against Peterson, but that the condition of ‘preponderance of information’ to support
the termination of . . . Peterson [wa]s not satisfied.” Id. at 12. Thus, Dr. Hitch
determined Peterson should be reinstated following a ten-day suspension. She also
required DSU to “issue a ‘final chance’ letter outlining the expectations of
[Peterson’s] employment and consequences of similar policy violations in the
future.” Id.. She further determined Peterson should “not make unfounded
derogatory statements about [DSU] and its faculty, staff, students, or administration”
and to “not discuss faculty matters with students and third parties.” Id.4
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Following Dr. Hitch’s review, Hicks presented Peterson with the “Last Chance
Agreement.” In addition to prohibiting Peterson from, among other things, making
baseless derogatory statements about DSU, it also allegedly altered and amended
Peterson’s tenure agreement with DSU, exceeding the scope of the final chance letter
required by Dr. Hitch.
Hicks told Peterson he had to sign the Last Change Agreement or he would be
fired. Peterson refused and unsuccessfully sought intervention by Dr. Hitch. In
August 2018, Peterson learned he had been terminated after he was notified his son
was no longer eligible for a tuition waiver as a faculty member’s child.
b.
On August 19, 2019, Peterson sued DSU, Williams, Hicks, Lacourse, and
Lynn Joseph, DSU’s investigator, and alleged five causes of action. Peterson
asserted three causes of action pursuant to 42 U.S.C. § 1983: (1) a First Amendment
retaliation claim, (2) a First Amendment prior restraint claim, and (3) a civil
conspiracy claim. He also asserted two state-law causes of action—one for breach of
contract and one for wrongful termination in violation of public policy. The
defendants moved to dismiss Peterson’s complaint. The district court granted the
defendants’ motion, finding Peterson failed to state a claim for any of his three
federal claims and dismissing those claims with prejudice. The district court further
declined to exercise supplemental jurisdiction over Peterson’s state-law claims and
dismissed those claims without prejudice. Peterson timely appealed the district
court’s order as it related to his federal causes of action.
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II.
We review a district court’s order granting a motion to dismiss de novo. See
Waller v. City & Cty. of Denver, 932 F.3d 1277, 1282 (10th Cir. 2019). Although
Federal Rule of Civil Procedure 8 does not require detailed factual allegations,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A complaint does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544,557 (2007)).
Instead, “[t]o survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Id. (quoting Twombly, 550 U.S. at 570). To be facially plausible, a plaintiff
must plead “factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. Although the plausibility
standard does not amount to a probability requirement, it does “ask[] for more than a
sheer possibility that a defendant has acted unlawfully.” Id. A complaint pleading
“facts that are merely consistent with a defendant’s liability . . . stops short of the line
between possibility and plausibility of entitlement to relief.” Id. (internal quotation
marks omitted). Thus, “to enter the realm of plausible liability” and survive a motion
to dismiss, a complaint must cross both “the line between the conclusory and the
factual” and the line “between the factually neutral and the factually suggestive.”
Twombly, 550 U.S. at 557 n.5.
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III.
Applying the motion to dismiss standard, we find Peterson failed to plausibly
allege his three federal causes of action.
a.
Peterson claims that DSU and several of its employees retaliated against him
in violation of the First Amendment right to free speech by terminating his
employment after he criticized both Houser, whom he viewed as an incompetent
departmental leader, and the DSU administration’s decision to terminate Davenport.
The district court dismissed this claim, holding that Peterson made the statements at
issue in the course of his official duties and that they did not reflect a matter of public
concern. See App’x at 132.
Peterson, by virtue of his job as a professor at a public university, is a public
employee. See, for example, Singh v. Cordle, 936 F.3d 1022, 1029 (10th Cir. 2019).
Although a government employer has an “interest in controlling the operation of its
workplaces,” Lane v. Franks, 573 U.S. 228, 236 (2014), the First Amendment
nonetheless “protects a public employee’s right . . . to speak as a citizen addressing
matters of public concern.” Knopf v. Williams, 884 F.3d 939, 944 (10th Cir. 2018).
In striking a balance between the government’s interest in providing effective public
services and a citizen’s interest in commenting on matters of public concern, “the
First Amendment prohibits public employers from taking adverse action against
employees because of their protected speech.” Id. at 945. In other words, a public
employee’s speech is protected by the First Amendment when he speaks as a citizen
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on a matter of public concern. See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006);
see also Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
This court has held that the Garcetti/Pickering test governs whether an adverse
employment action amounts to impermissible retaliation. See Trant v. Okla., 754
F.3d 1158, 1165 (10th Cir. 2014). The test consists of the following elements:
(1) whether the speech was made pursuant to an employee’s official duties;
(2) whether the speech was on a matter of public concern;
(3) whether the government’s interest, as employer, in promoting the efficiency
of the public service are sufficient to outweigh the plaintiff’s free speech
interests;
(4) whether the protected speech was a motivating factor in the adverse
employment action; and
(5) whether the defendant would have reached the same employment decision in
the absence of the protected conduct.
Knopf, 884 F.3d 945. To prevail on a First Amendment retaliation claim, a plaintiff
must establish that all five elements favor him. See id. Ultimately, the employee
must prove that he speaks as a citizen on a matter of public concern, that his interest
in doing so outweighs that of his employer, and that his speech was a substantial
factor in the detrimental employment decision, which the employer would not have
taken in the absence of the protected speech. See Brammer-Hoelter v. Twin Peaks
Charter Acad., 492 F.3d 1192, 1202–03 (10th Cir. 2007) (Brammer-Hoetler I).
According to the district court, Peterson failed to plausibly plead that he spoke as a
citizen “on a matter of public concern.” Id. We agree.
According to the Supreme Court, speech is said to involve a matter of public
concern when it relates “to any matter of political, social, or other concern to the
community, or when it is a subject of legitimate news interest; that is, a subject of
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general interest and of value and concern to the public.” Lane, 573 U.S. at 241
(internal quotation marks omitted). Thus, “[s]tatements revealing official
impropriety usually involve matters of public concern.” Brammer-Hoelter, 492 F.3d
at 1205. In Lane, for instance, the Supreme Court found the plaintiff satisfied the
second Garcetti/Pickering factor when he testified, under oath and during a judicial
proceeding, about “corruption in a public program and misuse of state funds.” Lane,
573 U.S. at 241.
On the other hand, “speech that simply airs grievances of a purely personal
nature typically does not involve matters of public concern.” Brammer-Hoelter I,
492 F.3d at 1205 (internal quotation marks omitted). Accordingly, this court has
found that statements “regarding grievances about internal departmental affairs,
disputes over the term of employment, and workplace frustration” were “not [on]
matters of public concern.” Id. (internal quotation marks omitted).
Importantly, “[w]hether an employee’s speech addresses a matter of public
concern” is a question of law that must be determined not only by “the content . . . of
a given statement” but also by its “form and context . . . as revealed by the whole
record.” Singh, 936 F.3d at 1034–35 (quoting Connick v. Myers, 461 U.S. 138, 147
(1983)); see also Lane, 573 U.S. at 241 (extending its analysis beyond the Court’s
finding that “[t]he content of [the plaintiff’s] testimony . . . obviously involve[d] a
matter of significant public concern” to the “form and context” of plaintiff’s speech).
We thus consider not only what was said, but also why and how it was said. See
Brammer-Hoelter I, 492 F.3d at 1205.
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We therefore “consider . . . whether the speech [wa]s calculated to disclose
misconduct” rather than to voice “personal disputes and grievances,” as well as the
motive of the speaker. Singh, 936 F.3d at 1035 (internal quotation marks omitted). It
is not enough that the speech touched upon a subject of public interest. See id. at
1035–36; see also Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175,
1188 (10th Cir. 2010) (“Brammer-Hoelter II”). Nor is it “enough . . . that the public
interest was part of the employee’s motivation.” Singh, 936 F.3d at 1035. Rather,
our caselaw requires that “the employee’s primary purpose was to raise a matter of
public concern” for the employee to satisfy the Garcetti/Pickering public concern
factor. Id.
In our view, Peterson failed to plausibly allege that his purported statements
dealt with matters of public concern. First, Peterson failed to allege any actual
speech for us to determine whether his speech “addresse[d] a matter of public
concern” in light of “the content, form, and context of [Peterson’s] statement[s].” Id.
at 1034–35 (quoting Connick, 461 U.S. at 147). Instead, Peterson broadly alleged
that he “questioned the correctness of Davenport’s termination,” “whether . . . Houser
. . . was competent in his leadership,” and “whether the administration had acted in
accordance with due process and good faith in its termination of Davenport” through
discussions with community members. App’x at 9. Peterson elsewhere alleged that
he “express[ed] criticisms of the competence of Houser . . . and the justness of [the]
[d]efendants’ actions in the termination of Davenport.” Id. at 15.
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Without “further factual enhancement,” we have no way of evaluating the
“form and context” of Peterson’s speech—two of the three factors this court must
consider. See Singh, 936 F.3d at 1034–35. Based on the complaint, all we know is
that Peterson generally made statements critical of Houser’s leadership and
Davenport’s termination to members of his community “through in-person
conversations.” App’x at 8. But we do not know whether Peterson’s statements were
“calculated to disclose misconduct” rather than to voice “personal disputes and
grievances” such as his disagreement with Davenport’s termination. Singh, 936 F.3d
at 1035 (citation and internal quotation marks omitted). We do not know to whom
Peterson spoke, how he said what he purported to say, or how his statements arose.
We do not even know what primarily motivated Peterson. See id. The only
indication we have of any purpose behind his statements is that he “voiced [his]
criticisms and concerns as a concerned member of the Southern Utah community,
alarmed at the potential that a state entity . . . may have been failing [his]
community.” App’x at 9. But this allegation, taken in context, is meant to reinforce
Peterson’s argument that he spoke as a private citizen, not a public employee, rather
than to shed light on his motivation for speaking at all. See id. Furthermore, it may
be possible that Peterson’s allegation that the university was “failing [his]
community” amounted to a public concern or matter of general interest. But that
conclusory statement, standing alone and lacking any specific factual allegations to
support its newsworthiness, fails to meet the plausibility standard that is required.
See Iqbal, 556 U.S. at 678. Finally, because Peterson fails to show that he intended
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to raise a matter of public concern, he also, of course, fails to prove that this was his
“primary purpose.” Singh, 936 F.3d at 1035.
Moreover, because the complaint lacks specific statements by Peterson, there
is no way to evaluate the content of Peterson’s speech. In his complaint, Peterson
alleges that he “questioned the correctness of Davenport’s termination, whether Mark
Houser was competent in his leadership, and whether the administration had acted in
accordance with due process and good faith in its termination of Davenport.” App’x
at 42 (cleaned up).
Although “speech related to internal personnel disputes ordinarily do[es] not
involve public concern,” Dill v. City of Edmond, 155 F.3d 1193, 1202 (10th Cir.
1998), it is possible to imagine a situation where Peterson’s statements about the
“correctness” and “justness” of Davenport’s termination divulged a matter beyond a
personal grievance. App’x at 9, 15; see Dill, 155 F.3d at 1202 (holding that speech
disclosing “any evidence of corruption, impropriety, or other malfeasance on the part
of [public] officials . . . clearly concerns matters of public import”). But, because the
complaint contains broad allegations of the subject matter of Peterson’s statements
rather than the specific purported statements themselves, we have no way of
“reasonabl[y] infer[ring]” that the content addressed matters of public concern.
Iqbal, 556 U.S. at 678. Peterson’s allegations lack any indication that his statements
dealt with a matter of general interest; they only tell us, in general terms, what his
personal interest was in the matter.
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We acknowledge that “the pleading standard Rule 8 announces does not
require ‘detailed factual allegations.’” Id. (citation omitted). Peterson’s bare
allegations, however, are devoid of sufficient “factual content [to] allow [us] to draw
the reasonable inference that the defendant[s] [are] liable for” First Amendment
retaliation. Id. As a result, we find the district court was correct to dismiss
Peterson’s first cause of action for failure to state a claim.
b.
For this court “to exercise jurisdiction under Article III” over a claim, a
plaintiff “must allege (and ultimately prove) that [he] has suffered an injury in fact,
that the injury is fairly traceable to the challenged action of the [d]efendants, and that
it is redressable by a favorable decision.” Initiative & Referendum Inst. v. Walker,
450 F.3d 1082, 1087 (10th Cir. 2006) (internal quotation marks omitted). The injury-
in-fact question is “particularly delicate” for prior restraint claims. Id. at 1088.
Unlike a retaliation claim, in which a plaintiff alleges “adverse action taken in
response to actual speech,” a prior restraint claim is “based on a restriction that chills
potential speech before it happens.” Brammer-Hoelter II, 602 F.3d at 1182 (citation
and internal quotation marks omitted). Indeed, the speech “might never occur” and
“the government [entity] may have taken no enforcement action.” Walker, 450 F.3d
at 1088.
As a result, this court requires a plaintiff to allege and later prove more than
“that the restraint has a subjective chilling effect on his speech” to “satisfy the injury-
in-fact requirement.” Brammer-Hoelter II, 602 F.3d at 1182. Instead, this court has
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explained that “a chilling effect on the exercise of a plaintiff’s First Amendment
rights may amount to a judicially cognizable injury in fact, as long as it ‘arise[s] from
an objectively justified fear of real consequences.’” Id. (quoting Walker, 450 F.3d at
1088). Additionally, the plaintiff must also allege that his speech was actually
chilled. See id. at 1183–84 (concluding that the plaintiffs did not have standing for
one of their prior restraint claims because “nothing in the record indicat[ed] their
speech . . . was altered or deterred in any way” by the alleged restraint nor
“support[ed] the conclusion [that the restraint] caused [the] [p]laintiffs a concrete,
judicially cognizable injury”).
Peterson fails to allege that the Last Chance Agreement “altered or deterred”
his speech. Id. Peterson only alleges that he tried to challenge the Last Chance
Agreement, refused to sign it, and learned at the start of the next school year he had
been terminated. There is no indication, however, that the agreement caused him to
alter his speech. Therefore, we find the district court was correct to dismiss this
claim.
The district court dismissed this claim with prejudice. Because we find that
Peterson failed to plausibly allege a standing issue, we remand to the district court to
amend the judgment to dismiss this claim without prejudice. See Bruzga v. City of
Boulder, 795 F. App’x 599, 604–05 (10th Cir. 2020) (holding that “because the
dismissal was for lack of standing it should have been without prejudice” and
remanding matter to district court to modify judgment).
c.
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Peterson’s final federal claim—his civil conspiracy claim—is derivative of his
two constitutional claims. Because he failed to plausibly allege either of those two
claims, however, Peterson necessarily failed to plausibly allege this claim as well. In
any event, Peterson failed to plausibly allege there was a conspiracy at all. Peterson
relies on his allegations that the defendants knew about Peterson’s criticisms and that
Williams and Hicks were copied on the termination letter signed by Lacourse.
Peterson further relies on his speculation that Hicks drafted the Last Chance
Agreement “at the direction of Williams and Lacourse.” App’x at 13. But these
allegations, taken as true, do not support a “reasonable inference” that the defendants
agreed to deprive Peterson of his constitutional rights. See Tonkovich v. Kansas Bd.
of Regents, 159 F.3d 504, 533 (10th Cir. 1998) (finding it unreasonable to infer that
defendants conspired together because they met with one another before a meeting
that ended unfavorably for the plaintiff). Rather, these allegations merely show that
the DSU president, provost and vice president, and general counsel had overlapping
roles in and were kept informed of the initial termination and subsequent disciplining
of Peterson. To be sure, these allegations may be “consistent with” an agreement,
but “mere[] consisten[cy]” is insufficient to cross “the line between possibility and
plausibility.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted).
Moreover, to the extent Peterson suggests we should glean an “agreement” from his
speculation that Williams and Lacourse “directed” the DSU general counsel to draft
the Last Chance Agreement, that allegation, without more, is simply a “naked
assertion devoid of further factual enhancement.” Id. Neither “factually neutral” nor
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“conclusory” allegations, however, are enough to survive a motion to dismiss.
Twombly, 550 U.S. at 557 n.5. Therefore, we affirm the district court’s dismissal of
this claim as well.
IV.
For the foregoing reasons, we affirm. Because we find Peterson failed to
plausibly allege standing for his prior restraint claim, we remand to the district court
to amend its judgment to dismiss this claim without prejudice.
Entered for the Court
Allison H. Eid
Circuit Judge
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