* This order and judgment is not binding precedent, e xcept under the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

### 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

.-2-

Tulsa Police Officers Sam Keirsey and Kay Orndorff brought this action under 42 U.S.C. § 1983 against the City of Tulsa, f ormer Tulsa Police Chief Drew Diamond, and Tulsa Police Officers Carolyn Kusler, Charles Jackson, and Bobby Busby. Plaintiffs assert their First Amendment rig hts were violated when defendants retaliated against them for speaking outabout alleged improprieties in the Police Department’s operation of the Tulsa Yout h Ranch. The district court concluded that the individual defendants were entit led to summary judgment because plaintiffs’ allegations were conclusory andnonspecific. The court also entered summary judgment for the City of Tulsa, hol ding 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 respo nsibility for the operation of the Youth Ranch was transferred from auniformed division to Tulsa Police headquarters. Defendant Jackson was respons ible for the Ranch before the transfer, and defendant Kusler, who was division co mmander at headquarters, was responsible after the change. Plaintiff Orndorff w as assigned to meet with the outgoing personnel to prepare for a smooth transiti on. The Ranch had received a federal grant to fund sports programs for underpriv ileged children, and Plaintiff Keirsey was in charge of overseeing grant operation s. Both plaintiffs reported to Defendant Kusler.-3-

During the transition, plaintiffs received informat ion which led them to believe that Ranch funds and equipment had been mis appropriated and/or stolen, and that other improper activities had taken place there. Plaintiffs reported their suspicions to Kusler. Meetings were held, a City C ouncilor began to ask questions about the situation, and ultimately the D istrict Attorney began an investigation. Plaintiffs were directed by the May or’s office to cooperate with the investigation and they did so, telling the DistrictAttorney’s office all they knew and had heard about improprieties that had allegedl y taken place at the Ranch. Plaintiffs brought this suit alleging that as a res ult 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 f reedom of expression.’” Schalk v. Gallemore , 906 F.2d 491, 494 (10th Cir 1990) (quoting Connic k v. Myers , 461 U.S. 138, 142 (1983)). By the time the events at i ssue here took place, we had rejected the position that “only adverse employmentdecisions, such as termination, suspension, or transfer, in retaliatio n for constitutionally protected conduct are illegal,” holding instead that “[a]ctio ns 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-4-

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 subse quent cases. Nonetheless, the cases we cited in Morfindemonstrate that the actions complained of must be sufficiently substantial to p resent 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 notconstitutional violation when so trivial “a person of ordinary firmness woul d not be deterred” from engaging in protected activity); Allen v. Scribner , 812 F.2d 426, 434 n.17 (9th Cir. 1987) (harassment not constitutional violationwhen court can say as matter of law that exercise of First Amendment rights not deterred). When a defendant asserts the defense of qualified i mmunity, the plaintiff must come forward with evidence of sufficient parti cularity demonstrating that the defendant’s conduct violated clearly establishe d 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 evid ence 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 suchfacts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to-5-

the matters therein.” Fed. R. Civ. P. 56(e). Plaintiffs’ failure to comply with the above requir ements for opposing a grant of a grant of summary judgment seriously impe des our ability to address their claims on the merits. We have repeatedly cau tioned that the nonmovant must do more than refer to allegation s of counsel contained in a brief to withstand summary judgment. Rather, sufficient evidence (pertinent to the material issu e) must be identified by reference to an affidavit, a depositi on transcript or a specific exhibit incorporated therein. In the abse nce of such specific reference, we will not search the record in an effo rt to determine whether there exists dormant evidence which might r equire submission of the case to a jury. Such an appellat e supplementation of the nonmovant’s presentation would not be fair t o 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 b ecause ‘[a] third party’s description of [a witness’] supposed testimony is n ot suitable grist for the summary judgment mill.’” Gross v. Burggraf Constr. Co. , 53 F.3d 1531, 1541 (10th Cir. 1995) (citations omitted). As we discus s briefly below, plaintiffs here have frequently failed to support their arguments w ith any record citations whatsoever, and many of the citations they do provi de are to hearsay evidence that we will not consider. We first address plaintiffs’ claims against the ind ividual defendants.-6-

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 inretaliation for their protected activity. Specifically, Kiersey complains about hi s reassignment by Chief Palmer to the midnight shift under Major Bob chance and hi s subsequent lower performance evaluation. Orndorff apparently compla ins about her transfer by Chief Dave Bean and her June 1, 1993 evaluation by Lieutenant Jim Green. Significantly, however, the persons responsible forthe transfers and the reviews are not named defendants in this lawsuit. Plaintif fs 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 n ot defeat the grant of summary judgment. Plaintiffs also assert the following laundry list o f incidents which they contend constitute actionable harassment under Morf in

. 1. Kusler filed a sexual harassment complaint agains t Keirsey; 2. Kusler altered a tape recording regarding a meeti ng with Keirsey and Orndorff; 3. Charles Jackson attempted to have Keirsey and Orn dorff 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 Tul sa County1 As to item number one, the record reflects that Of ficer Kusler filed her complaint against another officer, not plaintiff Ke irsey. Her complaint against Keirsey was that he did not properly process the co mplaint, which others with authority determined was not actionable. As to ite m number eight, plaintiffs conceded in district court that they had no evidenc e to support the allegation. -7- District Attorney’s Office; 7. Mayor Pro Temp Susan Savage tried to dissuade Kei rsey’s and Orndorff’s meeting with [the city councilman]; 8. Busby made threats against Keirsey and Orndorff; 9. Diamond attempted to transfer Keirsey and Orndorf f; 10. Diamond threatened that Keirsey and Orndorff wou ld be “dealt with;” 11. Kusler lied to the Tulsa World [newspaper] regar ding 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 mo re than hearsay. Indeed, the list as it appears in district court pleadings is u naccompanied by any citations to the record whatsoever. Moreover, even if the alleg ations were properly accompanied by admissible evidence, it is undispute d 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-o f action must be sufficiently adverse to present an actual or potential danger th at the speech of employees will be chilled”). Accordingly, in view of our discussi on in Morfinindicating that harassment alone does not rise to a constitutional violation unless it presents a2 In addition to relying on the conduct of former Ch ief 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 con duct cannot be characterized as harassment, is unsupported by any citation to ad missible evidence, and is too -8- substantial danger of chilling protected speech, in dividual defendants were entitled to summary judgment. Plaintiffs also sued the City of Tulsa, asserting t hat it is liable for the unconstitutional acts of former Police Chief Diamon d. 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-ma ker for the City. The Tulsa Municipal Ordinances provide that the Police Depart ment “shall be under the control and authority of the Mayor who shall approv e 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 furth er provide that the Chief is accountable to the Mayor for the promulgation of al l orders given to the Department, and requires the Chief to confer with a nd be advised by the Mayor on all important matters pertaining to the Department. Id. sec. 106. 2 This case istrivial to rise to a constitutional violation in any event. -9- 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 a nd the pertinent municipal code in fact vested final authority in the Chief. Id. at 1568.
We AFFIRM the grant of summary judgment against all defendan ts.

ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge