*This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

APR 29 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SAM KEIRSEY and KAY ORNDORF,

Plaintiff-Counter DefendantAppellant,

v.

DREW DIAMOND, BOBBY BUSBY,

and CHARLES JACKSON,

Defendants-Appellees,

CAROLYN KUSLER,

Defendant-Counter ClaimantAppellee,

CITY OF TULSA,

Defendant-Cross Claim

Defendant-Appellee.

No. 96-5155

(D.C. No. 92-C-345-H)

(N. Dist. Okla.)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, EBEL, and BRISCOE.
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Tulsa Police Officers Sam Keirsey and Kay Orndorff brought this action

under 42 U.S.C. § 1983 against the City of Tulsa, former Tulsa Police Chief Drew

Diamond, and Tulsa Police Officers Carolyn Kusler, Charles Jackson, and Bobby

Busby. Plaintiffs assert their First Amendment rights were violated when

defendants retaliated against them for speaking out about alleged improprieties in

the Police Department’s operation of the Tulsa Youth Ranch. The district court

concluded that the individual defendants were entitled to summary judgment

because plaintiffs’ allegations were conclusory and nonspecific. The court also

entered summary judgment for the City of Tulsa, holding that none of the alleged

improper conduct was taken by City policy-makers. Plaintiffs appeal and we

affirm.

The events leading up to this suit began when responsibility for the

operation of the Youth Ranch was transferred from a uniformed division to Tulsa

Police headquarters. Defendant Jackson was responsible for the Ranch before the

transfer, and defendant Kusler, who was division commander at headquarters, was

responsible after the change. Plaintiff Orndorff was assigned to meet with the

outgoing personnel to prepare for a smooth transition. The Ranch had received a

federal grant to fund sports programs for underprivileged children, and Plaintiff

Keirsey was in charge of overseeing grant operations. Both plaintiffs reported to

Defendant Kusler. 
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During the transition, plaintiffs received information which led them to

believe that Ranch funds and equipment had been misappropriated and/or stolen,

and that other improper activities had taken place there. Plaintiffs reported their

suspicions to Kusler. Meetings were held, a City Councilor began to ask

questions about the situation, and ultimately the District Attorney began an

investigation. Plaintiffs were directed by the Mayor’s office to cooperate with the

investigation and they did so, telling the District Attorney’s office all they knew

and had heard about improprieties that had allegedly taken place at the Ranch.

Plaintiffs brought this suit alleging that as a result of their cooperation and

the information they gave during the investigation, defendants subjected them to

harassment, intimidation, and retaliation. “It is now axiomatic that a

governmental entity cannot condition employment ‘on a basis that infringes the

employee’s constitutionally protected interest in freedom of expression.’” Schalk

v. Gallemore, 906 F.2d 491, 494 (10th Cir 1990) (quoting Connick v. Myers, 461

U.S. 138, 142 (1983)). By the time the events at issue here took place, we had

rejected the position that “only adverse employment decisions, such as

termination, suspension, or transfer, in retaliation for constitutionally protected

conduct are illegal,” holding instead that “[a]ctions short of an actual or

constructive employment decision can in certain circumstances violate the First

Amendment.” Morfin v. Albuquerque Pub. Schs., 906 F.2d 1434, 1437 n.3 (10th
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Cir. 1990) (emphasis added). We expressly did not delineate a precise standard in

Morfin, see id., and we have not had an occasion to do so in subsequent cases. 

Nonetheless, the cases we cited in Morfin demonstrate that the actions

complained of must be sufficiently substantial to present an actual or potential

danger that an employee’s speech will be chilled. See, e.g., Pieczynski v. Duffy,

875 F.2d 1331, 1333 (7th Cir. 1989) (harassment not constitutional violation

when so trivial “a person of ordinary firmness would not be deterred” from

engaging in protected activity); Allen v. Scribner, 812 F.2d 426, 434 n.17 (9th

Cir. 1987) (harassment not constitutional violation when court can say as matter

of law that exercise of First Amendment rights not deterred).

When a defendant asserts the defense of qualified immunity, the plaintiff

must come forward with evidence of sufficient particularity demonstrating that

the defendant’s conduct violated clearly established law. Langley v. Adams

County, 987 F.2d 1473, 1476 (10th Cir. 1993). “Although we view the evidence

and draw all inferences in the light most favorable to the party opposing summary

judgment, that party ‘must identify sufficient evidence which would require

submission of the case to a jury.’” Id. (quoting Mares v. ConAgra Poultry Co.,

971 F.2d 492, 494 (10th Cir. 1992)). “Supporting and opposing affidavits shall

be made on personal knowledge, shall set forth such facts as would be admissible

in evidence, and shall show affirmatively that the affiant is competent to testify to
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the matters therein.” Fed. R. Civ. P. 56(e). 

Plaintiffs’ failure to comply with the above requirements for opposing a

grant of a grant of summary judgment seriously impedes our ability to address

their claims on the merits. We have repeatedly cautioned that 

the nonmovant must do more than refer to allegations of counsel

contained in a brief to withstand summary judgment. Rather,

sufficient evidence (pertinent to the material issue) must be

identified by reference to an affidavit, a deposition transcript or a

specific exhibit incorporated therein. In the absence of such specific

reference, we will not search the record in an effort to determine

whether there exists dormant evidence which might require

submission of the case to a jury. Such an appellate supplementation

of the nonmovant’s presentation would not be fair to either the

movant or the district court.

Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024-25 (10th Cir.

1992) (citations omitted). Moreover, “[i]t is well settled in this circuit that we

can consider only admissible evidence in reviewing an order granting summary

judgment. Hearsay testimony cannot be considered because ‘[a] third party’s

description of [a witness’] supposed testimony is not suitable grist for the

summary judgment mill.’” Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541

(10th Cir. 1995) (citations omitted). As we discuss briefly below, plaintiffs here

have frequently failed to support their arguments with any record citations

whatsoever, and many of the citations they do provide are to hearsay evidence

that we will not consider.

We first address plaintiffs’ claims against the individual defendants. 
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Plaintiffs concede that they have never received a cut in pay, or been demoted or

suspended. They both nevertheless argue that they were given undesirable

transfers and less favorable performance reviews in retaliation for their protected

activity. Specifically, Kiersey complains about his reassignment by Chief Palmer

to the midnight shift under Major Bob chance and his subsequent lower

performance evaluation. Orndorff apparently complains about her transfer by

Chief Dave Bean and her June 1, 1993 evaluation by Lieutenant Jim Green. 

Significantly, however, the persons responsible for the transfers and the reviews

are not named defendants in this lawsuit. Plaintiffs have offered nothing but

hearsay and speculation to establish the retaliatory nature of these actions or to tie

them to defendants. Accordingly, these claims do not defeat the grant of

summary judgment.

Plaintiffs also assert the following laundry list of incidents which they

contend constitute actionable harassment under Morfin. 

1. Kusler filed a sexual harassment complaint against Keirsey;

2. Kusler altered a tape recording regarding a meeting with

Keirsey and Orndorff;

3. Charles Jackson attempted to have Keirsey and Orndorff lie

to [a city councilman] at a meeting;

4. Kusler made demands on Keirsey and Orndorff that had

never been made before (i.e.

reporting everything to her);

5. Diamond directed Plaintiff Orndorff to forget all that

happened;

6. Diamond, Busby and Kusler intimidated Keirsey and

Orndorff in regard to giving information to the Tulsa County
1

 As to item number one, the record reflects that Officer Kusler filed her

complaint against another officer, not plaintiff Keirsey. Her complaint against

Keirsey was that he did not properly process the complaint, which others with

authority determined was not actionable. As to item number eight, plaintiffs

conceded in district court that they had no evidence to support the allegation.

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District Attorney’s Office;

7. Mayor Pro Temp Susan Savage tried to dissuade Keirsey’s

and Orndorff’s meeting

with [the city councilman];

8. Busby made threats against Keirsey and Orndorff;

9. Diamond attempted to transfer Keirsey and Orndorff;

10. Diamond threatened that Keirsey and Orndorff would be

“dealt with;”

11. Kusler lied to the Tulsa World [newspaper] regarding

Keirsey;

12. Plaintiffs’ lowered performance evaluations.

Aplts. App. at 72.1

Many of the above items cannot be characterized as harassment, many are

unsupported, and others are supported by nothing more than hearsay. Indeed, the

list as it appears in district court pleadings is unaccompanied by any citations to

the record whatsoever. Moreover, even if the allegations were properly

accompanied by admissible evidence, it is undisputed that the conduct did not

chill the exercise of plaintiffs’ speech. See DeGuiseppe v. Village of Bellwood,

68 F.3d 187, 191 (7th Cir. 1995) (“the complained-of action must be sufficiently

adverse to present an actual or potential danger that the speech of employees will

be chilled”). Accordingly, in view of our discussion in Morfin indicating that

harassment alone does not rise to a constitutional violation unless it presents a
2

 In addition to relying on the conduct of former Chief Diamond to support

their claim against the City, plaintiffs also assert that the City is liable on the

basis of Mayor Pro Tem Susan Savage’s alleged attempt to dissuade them from

meeting with the city councilman. This alleged conduct cannot be characterized

as harassment, is unsupported by any citation to admissible evidence, and is too

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substantial danger of chilling protected speech, individual defendants were

entitled to summary judgment.

Plaintiffs also sued the City of Tulsa, asserting that it is liable for the

unconstitutional acts of former Police Chief Diamond. Having failed to establish

their claim against defendant Diamond individually through admissible evidence,

plaintiffs claim against the City based on the same conduct fails as well. See

Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993). 

Moreover, we agree with the district court that the City is not liable

because the Police Chief is not the final policy-maker for the City. The Tulsa

Municipal Ordinances provide that the Police Department “shall be under the

control and authority of the Mayor who shall approve rules and regulations

defining the authority, specifying the duties, and governing the conduct of all

police officers and employees of the Department.” Tulsa, Okla., Municipal

Ordinances tit. 29, sec. 101. The Ordinances further provide that the Chief is

accountable to the Mayor for the promulgation of all orders given to the

Department, and requires the Chief to confer with and be advised by the Mayor on

all important matters pertaining to the Department. Id. sec. 106.2 This case is
trivial to rise to a constitutional violation in any event.

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thus distinguishable from Flanagan v. Munger, 890 F.2d 1557 (10th Cir. 1989),

upon which plaintiffs rely, because there the City conceded that the Chief had

final authority to take the actions complained of and the pertinent municipal code

in fact vested final authority in the Chief. Id. at 1568.

We AFFIRM the grant of summary judgment against all defendants.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge