Cvancara v. Reams , 676 F. App'x 774 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 23, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
SUSAN CVANCARA,
Plaintiff - Appellant,
v. No. 16-1093
(D.C. No. 1:14-CV-03106-RM-CBS)
STEVE REAMS, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, GORSUCH, and MATHESON, Circuit Judges.
_________________________________
Susan Cvancara appeals from the district court’s entry of summary judgment
on her claim that she was fired from her job with the Weld County, Colorado,
Sheriff’s Office (WCSO) in retaliation for exercising her First Amendment
free-speech rights. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I. BACKGROUND
Ms. Cvancara worked as a victim’s advocate for the WCSO’s Victim Services
Unit (VSU) from 2005 until December 2013. In August 2013, Deborah Calvin was
hired to be Director of the VSU, a position Ms. Cvancara had held until she was
demoted in 2011 following a series of warnings and discipline for her behavior,
which included spreading rumors and making disparaging comments about other
employees.
At the time she became the full-time VSU Director, Ms. Calvin was a realtor,
and she continued to work as a realtor while employed as the Director. Ms. Cvancara
soon became concerned that Ms. Calvin was attending to her real estate job while on
VSU time. Ms. Cvancara expressed that concern to Investigator David Porter and
also complained to him that Ms. Calvin was changing policies in a manner that
disproportionately shifted work away from her and onto Ms. Cvancara, who was the
only other paid victim advocate, and that Ms. Calvin was hired to be the VSU
Director due to political connections. Investigator Porter told Ms. Cvancara to
address the issues by following her chain of command. Ms. Cvancara also relayed
some concerns about Ms. Calvin (precisely which ones are unclear from the record)
to WCSO Commander Ed Haffner who, like Investigator Porter, was not in her chain
of command.
Investigator Porter relayed Ms. Cvancara’s statements to another commander,
who informed Sergeant Peter Wagoner. Sergeant Wagoner and Ms. Calvin then met
with Ms. Cvancara, who claimed she had discussed her concerns about Ms. Calvin’s
2
policy changes only with Commander Haffner, did not know Ms. Calvin was
politically connected, and had not discussed with anyone whether Ms. Calvin was
working her real estate job while on county time. The next day, Ms. Cvancara
submitted a written statement to Sergeant Wagoner in which she made the same
claims. When Sergeant Wagoner met with Ms. Cvancara a few days later, she
initially repeated that she had spoken only to Commander Haffner about the policy
changes, but after Sergeant Wagoner said he knew that was not true and that he had
gotten information from Investigator Porter, Ms. Cvancara admitted the truth.
Sergeant Wagoner prepared a written report finding that Ms. Cvancara had
violated orders by not adhering to her chain of command when expressing concerns
about the policy changes and had violated various WCSO policies and Weld County
Code provisions concerning truthfulness, acceptance of responsibility, and
insubordination. His report was passed up the chain of command to the Sheriff who,
in light of Ms. Cvancara’s disciplinary history, fired Ms. Cvancara for
insubordination and lack of candor.1
In this lawsuit, Ms. Cvancara asserted a claim under 42 U.S.C. § 1983 that the
Sheriff violated her First Amendment right to freedom of speech because he fired her
for speaking out on a matter of public concern. The Sheriff moved for summary
judgment, which the district court granted on the ground that Ms. Cvancara’s speech
1
At the time, the Weld County Sheriff was John Cooke. Because
Ms. Cvancara sued Sheriff Cooke in his official capacity only, he was replaced as the
defendant in this action by the present Sheriff, Steve Reams. We will simply refer to
the defendant as the Sheriff.
3
was not protected because it did involve a matter of public concern. In reaching that
decision, the district court considered and granted in part the Sheriff’s motion to
strike portions of Ms. Cvancara’s affidavit. However, the court also determined that
its ruling on the motion to strike was “largely irrelevant” because, in responding to
the Sheriff’s statement of undisputed material facts, Ms. Cvancara had failed to
follow the court’s standards of practice concerning citation to supporting evidence
and therefore had not properly presented any of the facts she had attested to in her
affidavit. 3 Aplt. App. at 597.
Ms. Cvancara appeals, arguing the district court (1) misapplied the summary
judgment standard, (2) erroneously concluded that her speech did not involve a
matter of public concern, and (3) erred in striking or otherwise refusing to consider
statements in her affidavit.
II. STANDARD OF REVIEW
“We review the district court’s grant of summary judgment de novo, applying
the same standards that the district court should have applied.” Fields v. City of
Tulsa, 753 F.3d 1000, 1008 (10th Cir. 2014) (internal quotation marks omitted). A
“court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “[W]e examine the record and all reasonable inferences
that might be drawn from it in the light most favorable to the nonmoving party.”
Fields, 753 F.3d at 1009 (internal quotation marks omitted).
4
III. DISCUSSION
A. Application of summary judgment standard
In his motion for summary judgment, the Sheriff argued he was entitled to
judgment as a matter of law because the undisputed evidence revealed that
Ms. Cvancara could not establish the first and third prongs of the five-pronged
“Garcetti/Pickering” test applicable to retaliation claims brought under the First
Amendment’s free-speech clause.2 Those prongs are:
(1) whether the speech was made pursuant to an employee’s official duties;
(2) whether the speech was on a matter of public concern; (3) whether the
government’s interests, as employer, in promoting the efficiency of the
public service are sufficient to outweigh the plaintiff’s free speech interests;
(4) whether the protected speech was a motivating factor in the adverse
employment action; and (5) whether the defendant would have reached the
same employment decision in the absence of the protected conduct.
Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009). The district court
rejected the Sheriff’s arguments on the first and third prongs and instead granted
summary judgment based on the second prong—that Ms. Cvancara’s speech was not
“on a matter of public concern.” Ms. Cvancara claims that in considering and
deciding her case based on a prong the Sheriff did not raise, the district court
improperly relieved him of his initial burden to demonstrate an absence of any
genuine issue of material fact and impermissibly shifted the burden to Ms. Cvancara
to prove there were no genuinely disputed issues of material fact as to the
public-concern prong.
2
The test draws its name from Garcetti v. Ceballos, 547 U.S. 410 (2006), and
Pickering v. Board of Education, 391 U.S. 563 (1968).
5
We are not persuaded. Generally, a party moving for summary judgment is
charged with telling the district court the basis for its motion. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). But in Johnson v. Weld County, 594 F.3d 1202,
1214 (10th Cir. 2010), we approved a grant of summary judgment on a claim not
raised in a defendant’s opening summary-judgment brief where the plaintiff
“marshaled and outlined the evidence supporting her claim” in her response brief,
there was no indication the plaintiff was prevented “from offering additional
evidence or argument to defend her claim,” and the plaintiff did not identify on
appeal any “way in which she was prejudiced by the district court’s chosen
procedural course.”
Similarly here, the district court took up the public-concern issue only after
Ms. Cvancara argued in her summary-judgment response brief that her speech was on
a matter of public concern and pointed to evidence she claimed “established that her
speech [was] of public concern.” 2 Aplt. App. at 188. In his summary-judgment
reply brief, the Sheriff addressed the issue, arguing that there were no genuinely
disputed issues of material fact in the evidence properly before the court, and that
such evidence was insufficient for Ms. Cvancara to survive summary judgment.
Accordingly, the public-concern prong, which was a legal one for the court to decide,
see Dixon, 553 F.3d at 1302, was sufficiently developed for the court’s consideration,
and Ms. Cvancara has not complained that the manner in which the issue came to the
court’s attention prevented her from presenting evidence.
6
Ms. Cvancara characterizes the court’s conclusion that she “failed to establish”
the public-concern prong of the Garcetti/Pickering test, 3 Aplt. App. at 609, as an
improper requirement that she prove that prong. We disagree. The court’s use of the
phrase “failed to establish” may have been imprecise as a matter of
summary-judgment standards, but the court determined the evidence before it was
insufficient to support the public-concern prong. This was permissible because the
public-concern prong is an element of Ms. Cvancara’s claim and one on which she
was to bear the ultimate burden of persuasion at trial. See Trant v. Oklahoma,
754 F.3d 1158, 1166-67 (10th Cir. 2014) (noting that a plaintiff bears the burden of
proof on the first four Garcetti/Pickering prongs); Montes v. Vail Clinic, Inc.,
497 F.3d 1160, 1163 (10th Cir. 2007) (“Summary judgment follows when a moving
party points to the absence of factual support on an element essential to the
non-movant’s case, and on which the non-movant bears the burden of proof at
trial.”).
In sum we see no unfair prejudice flowing from the district court’s decision to
consider the issue even though the Sheriff did not raise it first. Whether the district
court erred in determining there were no genuinely disputed issues of material fact
and in concluding that Ms. Cvancara’s speech was not on a matter of public concern
are separate questions we proceed to address.
7
B. Ruling that speech was not on a matter of public concern
The district court determined that although “at first glance” Ms. Cvancara’s
speech to Investigator Porter3 appeared to be on a matter of public concern because
she spoke out about potential impropriety, a closer look at Ms. Cvancara’s statements
about Ms. Calvin’s alleged work as a real estate agent while on county time led to the
opposite conclusion. 3 Aplt. App. at 607. We agree.
“Speech is on a matter of public concern if it involves a matter of interest to
the community.” Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1367 (10th Cir.
2015). “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 v. Myers, 461 U.S. 138, 147–48 (1983). “We consider the
motive of the speaker and whether the speech is calculated to disclose misconduct or
3
The district court confined its analysis to what Ms. Cvancara said to
Investigator Porter because she did not rely on what she may have told Commander
Haffner concerning Ms. Calvin’s alleged real estate activities. As noted earlier, what
she may have told Commander Haffner is unclear from the record. Indeed, on
appeal, Ms. Cvancara points only to a bare, undisputed fact that she spoke with
Commander Haffner, and a line of questioning at her deposition where the Sheriff’s
attorney inquired why she took her concern about Ms. Calvin’s alleged real estate
activity to Investigator Porter and Commander Haffner despite the fact that she had
no personal knowledge informing that concern and had previously been warned about
spreading rumors. The undisputed fact says nothing about the content of that
conversation, and the Sheriff’s attorney’s line of questioning cannot be taken as
evidence that Ms. Cvancara spoke to Commander Haffner about Ms. Calvin’s real
estate activities. The only other references to that conversation indicate that it
concerned only the policy changes Ms. Calvin had instituted, and Ms. Cvancara has
never argued that her speech on those changes is protected. But even if she spoke
with Commander Haffner about her concerns that Ms. Calvin was working as a
realtor on county time, our analysis of the public-concern prong would be the same.
8
merely deals with personal disputes and grievances unrelated to the public’s interest.”
Nixon, 784 F.3d at 1367 (internal quotation marks omitted). “In particular, speech
that exposes official impropriety generally involves matters of public concern, while
speech that simply airs grievances of a purely personal nature typically does not.” Id.
at 1367–68 (internal quotation marks omitted).
Further, “[s]peech involves a public concern when the speaker intends to bring
to light actual or potential wrongdoing or breach of public trust by a public official or
to disclose any evidence of corruption, impropriety, or other malfeasance within a
governmental entity.” Eisenhour v. Weber Cty., 744 F.3d 1220, 1228 (10th Cir.
2014) (brackets and internal quotation marks omitted). However, “[i]t 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.” Nixon, 784 F.3d
at 1368 (emphasis added) (internal quotation marks omitted).
Here, the district court noted there was limited evidence properly before the
court of what Ms. Cvancara actually said to Investigator Porter because the only
evidence Ms. Cvancara presented consisted of some general facts about her
conversation with Investigator Porter, and the court declined to consider those facts
because of Ms. Cvancara’s failure to follow the court’s practice standard regarding
accurate citation. The court instead looked at what Investigator Porter described in a
written statement he submitted to his commander, which was simply that
Ms. Cvancara “believed [Ms. Calvin was] working a real estate job while working on
9
the WCSO clock,” 1 Aplt. App. at 140. The court noted that this provided no
explanation for Ms. Cvancara’s belief and no evidence of her motive.
But the court then considered, apparently in the alternative, facts it had said it
would not consider because of deficiencies in Ms. Cvancara’s affidavit and her
failure to follow the court’s practice standards concerning citation to the record.
Among those were that (1) soon after being hired, Ms. Calvin sent an email to other
victim advocates explaining she was also a realtor and providing a personal email
address; and (2) Ms. Cvancara said she had found Ms. Calvin’s real estate business
card in one of the county vehicles used by victim advocates and a camera containing
photos of a house that she thought were of the type a realtor might take in another
county vehicle, also used by victim advocates.4 The court concluded that even if
Ms. Cvancara had described these things to Investigator Porter, they would not be of
interest or concern to the public. Although the email was not presented to the court,
the court gleaned from the Sheriff’s deposition testimony that Ms. Calvin sent the
email to introduce herself to co-workers, and Ms. Cvancara admitted she did not
know who placed the business card in the car or who owned the camera, and that she
had no direct evidence that Ms. Calvin was working as a realtor on county time.
4
The district court also addressed other evidence Ms. Cvancara pointed to in
support of her contention that Ms. Calvin was impermissibly attending to her realtor
job while on county time, including (1) the fact that there was no investigation of
Ms. Calvin and (2) the testimony of a volunteer victim advocate that Ms. Calvin had
asked her to cover her responsibilities so she could attend a real estate meeting. The
court discounted this evidence because it was undisputed that Ms. Cvancara was not
aware of these facts at the time she spoke with Investigator Porter. We agree and
need not discuss those facts further.
10
See Lee v. Nicholl, 197 F.3d 1291, 1295 (10th Cir. 1999) (explaining that “speech
must sufficiently inform the issue as to be helpful to the public in evaluating the
conduct of the government” (internal quotation marks omitted)). The court further
reasoned that the form and context of Ms. Calvin’s conversation with Investigator
Porter—an informal conversation between co-workers—supported the conclusion
that Ms. Cvancara was not motivated by broader public purposes but was instead
airing grievances.5
We agree with the district court’s conclusion that Ms. Cvancara’s speech was
not on a matter of public concern. Based on the Sheriff’s description of Ms. Calvin’s
introductory email, which he looked at while being deposed, no reasonable inference
can be drawn that Ms. Calvin used her county email account to solicit real estate
business. Hence, even crediting Ms. Cvancara’s testimony that she had heard about
the email at the time she spoke with Investigator Porter, her statements to
Investigator Porter amounted to speculation based on a few weak bits of
circumstantial evidence (the business card and camera) that Ms. Calvin was attending
to her real estate job on county time. And further crediting Ms. Cvancara’s
contention that her motive was to expose potential misconduct, malfeasance, or
5
In support of its reasoning on form and context, the district court cited
Thayer v. City of Holton, 515 F. Supp. 2d 1198 (D. Kan. 2007), for its statement that
a “relatively private and informal setting and limited audience . . . are factors
suggesting that the comments were not matters of public concern,” id. at 1207.
However, we had earlier rejected the notion “that failure to speak publicly indicates
speech was not made on a matter of public concerns.” Lee, 197 F.3d at 1295. In
light of our ensuing analysis in this case, however, we need not determine whether
the district court erred in its form-and-context analysis.
11
corruption, motive alone is insufficient to turn speech into a matter of public concern
where the content of the speech is speculation based on weak evidence. This is
because “[t]he interest at stake is as much the public’s interest in receiving informed
opinion as it is the employee’s own right to disseminate it.” City of San Diego v.
Roe, 543 U.S. 77, 82 (2004) (per curiam) (emphasis added). Ms. Cvancara’s
suspicions about Ms. Calvin were not sufficiently informed to be of public concern.
C. Treatment of Ms. Cvancara’s evidence
Ms. Cvancara takes issue with the district court’s decision to strike three
paragraphs from her affidavit and to otherwise not consider evidence she presented
without adhering to the court’s practice standard concerning accurate citation.
However, as we have seen, the district court ultimately considered that evidence and
concluded (correctly, in our view) that the evidence did not alter its conclusion that
Ms. Cvancara’s statements to Investigator Porter did not touch on a matter of public
concern. Accordingly, we see no need to address the issue.
IV. CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
12