* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 24 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

FREDDY DEAN HARAGAN; WILLARD L. HOUSTON,

Plaintiffs-Appellants,

v. CITY OF WAURIKA, a political subdivision of the State of Oklahoma; JERRY WALLACE, individually and in his representative capacity; NOLAND COMBS, individually and in his representative capacity; WINFORD R. BICKERSTAFF, individually and in his representative capacity, Defendants-Appellees. No. 96-6237 (D.C. No. CIV-94-706-A) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY, LOGAN, and HENRY, Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiffs-appellants Freddy Dean Haragan and Willard L. Houston appeal the district court’s grant of summary judgment in f avor of defendants on their claims that they were discharged for engaging in sp eech protected by the First Amendment, and their claims that the discharges vio lated public policy. On appeal, plaintiff Haragan argues that the district court erred in granting summary judgment on his claims because the evidence was suf ficient to show that his speech to the news media involved a matter of publi c concern. Plaintiff Houston argues that the district court erred in granting su mmary judgment on his claims because the evidence was sufficient to show speech on a matter or public concern and a causal connection between the speech and his termination. Defendants have moved to dismiss plaintiffs’ appeals as untimely. We conclude we have jurisdiction, and agree that the district court err ed in granting summary judgment in favor of defendants. We therefore reverse and r emand the case for further proceedings.-3- I. Background A. Plaintiff Freddy D. Haragan Plaintiff Haragan was employed as Police Chief for the City of Waurika from June 1991 until his termination on August 30, 1993. On June 17, 1993, Nolan Combs was appointed as the new City Manager. During the following two months, he and Chief Haragan had several disput es in which Haragan refused to clean out his office, refused to take water samp les without a license, and refused to fire the animal control officer for fearof a lawsuit. When the animal control officer died in late July o r early August 1993, Haragan accompanied the new officer to the city’s d og pound to show him the facilities. He discovered blood all over the pound , approximately eighteen to twenty dogs and newborn puppies that had been shot, and two men throwing the animals into a hole they had dug with a backhoe. T he two men did not work at the pound, but were the City Manager’s son and a ci ty employee. Believing that a crime had been committed, Chief Haragan returned to his house and called the Humane Society in Lawton, Oklahoma to report what h e had seen. He next called Channel 7 and informed the news station whathad occurred at the pound. Haragan then called Assistant District Attorney Kar en Peck to inform her of the situation, and went to speak with Mayor Darvon Bate s. Thereafter, Chief-4-

Haragan and a Humane Society representative were interviewed by several news stations about the incident. Either that evening or the next day, Haragan went t o City Manager Combs’ office and asked him about the destruction of the d ogs. Combs was “very angry” at Haragan for calling the news station and “flew o ff the handle.” Appellant’s App. at 162, 164-66. Within days, the city council held a meeting about the dogs which was covered by the news media. Several weeks after the incident, City Manager Combs terminated Chief Haragan. When Harag an asked why he was being terminated, Combs refused to reply, simply re ferring him to the letter of termination. Defendants maintain that Haragan was terminated for his poor performance and his failure to obey the City Manage r’s orders. Plaintiff Haragan brought claims against the City o f Waurika and City Manager Combs, alleging that he had been terminatedin retaliation for his protected speech about the dogs, in violation of 42 U.S.C. § 1983 and Oklahoma public policy. The district court granted summary judgment in favor of defendants on the ground that Haragan failed to spe cify the content of his statements to the news media, holding the evidence insufficient to show the speech involved a matter of public concern. The co urt denied Haragan’s motion to reconsider, and this appeal followed.-5-

B. Plaintiff Willard L. Houston Plaintiff Houston was employed by the City of Wauri ka as supervisor of the Street Department from 1989 until his termination o n June 1, 1993. At the beginning of May 1993, defendant Jerry Wallace was elected to the city council. Several days later, the City Manager was terminated , and council member Wallace took over as Acting City Manager for approximately five days. According to plaintiff Houston, on the day after council member Wallace took over as City Manager, he directed Houston and other city employe es to begin hauling trash from the city transfer station, including batteries , roofing materials, tires, oil sweepings, and metal scraps, to a swamp by the side of a road, and to dispose of the trash in the swamp. Houston protested that the dumping was illegal, but did as he was told. Defendant Winford Bickerstaff was then appointed Acting City Manager, on or about May 10, 1993, and continued inthat position until he was replaced by Nolan Combs on June 17, 1993. After Bi ckerstaff took over, he continued to require plaintiff Houston to move the trash from the transfer station to the swamp, and instructed Houston to dump the tr ash in a new place as well. Houston protested the dumping as illegal on several occasions, and warned Bickerstaff that the City would get in trouble. Ho uston testified that on each occasion Bickerstaff told him that it was none of h is business, and that he should keep his mouth shut.-6-

Approximately a week later, Civil Defense Director Harold Winton approached plaintiff Houston and asked him about th e dumping. Houston told Winton what was being dumped and Winton contac ted the State Health Department. Several days later, a representative o f the Health Department, Jeff Lawler, arrived at the transfer station from w hich the trash was being hauled. When Lawler inquired about the destination of the trash, Houston told Lawler that he was placing Houston in a difficult position regarding his job, but that he couldn’t stop Lawler from following him. See Appellant’s App. at 218. Lawler followed Houston, watched him dump the trash in the swamp, and then contacted City Manager Bickerstaff. According to Houston, Bi ckerstaff then told Houston “to keep [his] mouth shut, not to be running [his] mouth if [he] wanted to keep [his] job.” Id. at 225. The City was eventually required to remov e all of the dumped trash from the swamp. In mid-May, at approximately the same time these ev ents were occurring, several city council members contacted City ManagerBickerstaff about payments plaintiff Houston received for parts used in repair ing city vehicles. Houston occasionally repaired vehicles for the city at no c harge, but submitted receipts for the parts, for which the city council approved paym ent. Houston had previously owned a starter and alternator repair business, andsome of the parts for which he received reimbursement came from his leftover inventory. Believing these-7-

payments violated the city charter, the council mem bers told Bickerstaff that Houston should be terminated. The evidence is conf licting as to whether council member Wallace participated in this discussion. OnMay 26, 1993, the City Attorney confirmed that the payments may have violated the city charter, and on June 1, 1993, plaintiff Houston was terminated fromhis employment. Plaintiff Houston brought claims against the City, former City Manager Bickerstaff, and council member Wallace, alleging t hat he was terminated because of his speech regarding the illegal dumping , in violation of 42 U.S.C. § 1983, several environmental regulatory statutes, and the public policy of Oklahoma. The district court granted summary judgm ent in favor of defendants, noting first its doubts whether Houston had engagedin protected speech, but concluding that even if he had, Houston failed to s how a nexus between his speech and his termination. The district court den ied Houston’s motion to reconsider, and this appeal followed.

II. Discussion We begin by examining our jurisdiction over this ap peal. Defendants argue that we lack jurisdiction because plaintiffs’ appea l was not filed within thirty days after the summary judgments entered against them be came final. In the district court, four different plaintiffs brought claims aga inst defendants, arising out of-8-

four separate employment terminations. On February6, 1996, the district court entered summary judgment in favor of defendants on the claims brought by plaintiffs Haragan and Houston. On April 25, 1996, the district court entered an order denying Haragan’s and Houston’s motions to re consider. The other two plaintiffs settled their claims, and on June 4, 199 6, the district court entered an order dismissing the claims of the last remaining p laintiff. Plaintiffs Haragan and Houston filed their notice of appeal on July 5, 199 6. Our jurisdiction under 28 U.S.C. § 1291 is limited to reviewing final decisions of the district court, that is, decisions that fully resolve all claims for relief. See Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc. , 82 F.3d 1533, 1541 (10th Cir.), cert. denied , 117 S. Ct. 297 (1996). When a lawsuit involves m ultiple claims or parties, “a judgment which adjudicates fe wer than all the claims or the rights and liabilities of fewer than all the partie s shall not terminate the action as to any of the claims or parties,” unless the distri ct court expressly determines there is no just reason for delay and expressly dir ects entry of a final judgment. Fed. R. Civ. P. 54(b). Here, the district court ma de no such express determination, and did not expressly direct entry o f final judgments on Haragan’s and Houston’s claims. The summary judgments did no t become final, therefore, until the district court disposed of the last plaintiff’s claims on June 4, 1996.-9-

Because plaintiffs Haragan and Houston filed their notice of appeal within thirty days of that date, their appeal was timely, and we have jurisdiction. We review the grant or denial of summary judgment d e novo, applying the same standards as the district court under Fed. R. Civ. P. 56(c). See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). Summary jud gment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(c). When applying this standar d, we examine the factual record and reasonable inferences therefrom in the l ight most favorable to the party opposing summary judgment. See Kaul , 83 F.3d at 1212. A public employee’s claim that his or her terminati on violated protected speech rights requires a four-step analysis: (1) wh ether the employee engaged in speech involving a matter of public concern; (2) wh ether the employee’s interest in such expression outweighed the government’s inte rest in providing public services efficiently; (3) whether the employee has shown that the protected speech was a substantial or motivating factor in the chall enged employment decision; and (4) whether the employer has shown that it would have reached the same decision in the absence of the protected speech. See Gardetto v. Mason , 100 F.3d 803, 811-10-

(10th Cir. 1996); see also Connick v. Myers , 461 U.S. 138, 146-53 (1983); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 284, 287 (1977). We first address whether plaintiff Haragan presente d sufficient evidence that his speech involved a matter of public concern . Speech involves a matter of public concern if it can “be fairly considered as r elating to any matter of political, social, or other concern to the community.” Connic k , 461 U.S. at 146. The threshold inquiry is “whether the employee has spok en ‘as a citizen upon matters of public concern,’ or merely ‘as an employee upon matters only of personal interest.’” Gardetto , 100 F.3d at 812 (quoting Connick , 461 U.S. at 147). This is determined by examining the speaker’s motive to dec ide whether his speech was calculated to redress personal grievances or whethe r it had a broader public purpose. See Gardetto , 100 F.3d at 812. “Speech that pertains to a publ ic agency’s discharging its governmental responsibilit ies ordinarily will be regarded as speech on a matter of public concern,” David v. City & County of Denver , 101 F.3d 1344, 1355 (10th Cir. 1996) (quotations om itted), cert. denied , 1997 WL 436767 (October 6, 1997), as will speech “which discloses any evidence of corruption, impropriety, or other malfeasance on th e part of city officials,” Conaway v. Smith , 853 F.2d 789, 796 (10th Cir. 1988). Here, the district court concluded that without kno wing the exact words spoken by Haragan, it was unable to determine wheth er his speech related to a-11-

matter of public concern. We believe the record su fficiently discloses the content of plaintiff Haragan’s comments to determine whethe r his speech related to a matter of public concern. See Patrick v. Miller , 953 F.2d 1240, 1247 (10th Cir. 1992) (noting that although the precise content of plaintiff’s remarks was not disclosed by the record, the evidence was sufficient to determine whether his speech was on a matter of public concern); see also Jefferson v. Ambroz , 90 F.3d 1291, 1296-97 (7th Cir. 1996) (holding when examini ng “content” of employee’s speech, “the court need only know the gist of what the employee said, not the precise words he used to express himself”). Haragan testified that he called Channel 7 and told them “about the dogs being shot at the dog pound,” and that “approximately 19, 20 something dogs [had] been sho t, [including] puppies.” Appellant’s App. at 157-58. He further testified t o his motive for speaking out, stating that the disposal of the dogs was improper, and that he believed a crime had been committed. See id. at 152, 154-55. This public disclosure by the pol ice chief of conduct by the City that he considered bot h illegal and unethical, see id. at 171, “sufficiently inform[ed] the issue as to be helpful to the public in evaluating the conduct of government,” Withiam v. B aptist Health Care of Oklahoma, Inc. , 98 F.3d 581, 583 (10th Cir. 1996) (emphasis omitt ed), and therefore pertained to a matter of public concern. The summary judgment granted in favor of defendants on this issue was improper, and must be reversed.1 Plaintiff Houston also testified that he contacted another state official, Fred

Biehler, about the dumping, but could not remember if this occurred before or after his termination. In addition, Houston testif ied that he spoke to two city council members, but does not indicate that his emp loyer knew of these conversations, and thus presents no evidence that s uch speech entered into the decision to terminate him. -12- Next, we examine whether plaintiff Houston engaged in speech on a matter of public concern, and if so, whether he presented sufficient evidence of a causal connection between such speech and his termination to raise a triable issue of fact. Applying the standards set out above, we con clude Houston’s protestations to City Manager Bickerstaff and his disclosure of the illegal dumping to Civil Defense Director Winton and Health Department emplo yee Lawler constituted speech on a matter of public concern. 1 Houston’s statements to Bickerstaff and his answers to Winton’s questions concerned potenti al wrongdoing by the City in which the public would definitely be interested. S ee Conaway , 853 F.2d at 796. There is no evidence that Houston’s speech was moti vated solely by personal interest or hostility; instead, there is evidence t hat he engaged in speech primarily for the purpose of informing his superior and an investigating authority of conduct he perceived to be improper and illegal. S ee id. Houston’s response to Health Department employee Lawler’s query constitut ed speech on the same matter. Although Houston did not expressly state t o Lawler that the City was illegally dumping trash in the swamp, his response to Lawler’s inquiry conveyed-13-

that very message. See Spence v. Washington , 418 U.S. 405, 409-11 (1974) (holding person’s nonverbal activity sufficiently i mbued with elements of communication when “[a]n intent to convey a particu lar message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who [received] it”). Further, the district court erred in finding Housto n’s evidence of a causal connection insufficient. With regard to the City a nd former City Manager Bickerstaff, Houston presented undisputed evidence that after Bickerstaff’s conversation with Health Department employee Lawler , Bickerstaff threatened Houston’s termination if he continued “running [his ] mouth,” and that he should “keep [his] mouth shut.” Appellant’s App. at 225. The record also contains evidence that Houston’s termination occurred withinweeks of his conversations with Bickerstaff, Winton, and Lawler. We have reco gnized that a retaliatory motive can be inferred when an adverse action close ly follows the exercise of protected activity. See Ramirez v. Oklahoma Dep’t of Mental Health , 41 F.3d 584, 596 (10th Cir. 1994) (holding evidence of adve rse employment actions a month and a half after engaging in protected activi ty was circumstantial evidence of retaliation); Smith v. Maschner , 899 F.2d 940, 948-49 (10th Cir. 1990) (holding evidence of close temporal proximity betwe en engaging in protected activity and subsequent discipline was evidence of retaliation).-14-

Further, Houston presented evidence that defendants ’ proffered reason for his termination was pretextual, including testimonyby city council members indicating that the city charter was enforced selec tively, and that other times the charter would be purposely ignored, see Appellant’s App. at 123-24, 141; evidence that the city council had knowingly approv ed payment to Houston for the parts on several occasions, id. at 140, 143, 144, 185; evidence that Houston was fired without a previous reprimand or other pro gressive discipline, id. at 86, 93, 95; and evidence that similar violations of the city charter were ignored, id. at 88, 92, 97. See, e.g. , Wulf v. City of Wichita , 883 F.2d 842, 862 (10th Cir. 1989) (noting fact that no other officer had been fired f or a first act of insubordination suggested pretext). Summary judgment in favor of council member Wallace was also improper. Although it is not clear whether Wallace knew aboutHouston’s speech to Winton or Lawler, Wallace undeniably knew that Houston hadprotested the dumping as illegal when he himself ordered Houston to begin hauling the trash to the swamp at the beginning of May. The private nature of th is conversation does not remove the speech from constitutional protection. See Givhan v. Western Line Consol. Sch. Dist. , 439 U.S. 410, 413-16 (1979). Wallace has been id entified as one of the council members who, several weeks later, appro ached Bickerstaff and directed him to terminate Houston based on the citycharter violation. Finally,-15-

there is evidence that the charter was only enforce d selectively, often when the city council sought to terminate an employee for an other reason (as allegedly was done with Winton, based on his reporting of the ill egal dumping, see Appellant’s App. at 123). Taking all inferences in favor of Ho uston, as we must when reviewing a summary judgment, we conclude a factual issue exists whether council member Wallace’s participation in the termi nation decision was motivated by Houston’s speech concerning the illegal dumping. The judgment of the United States District Court fo r the Western District of Oklahoma is REVERSED and the case is REMANDED for f urther proceedings.

Entered for the Court

Robert H. Henry Circuit Judge