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The Honorable Ronald E. Longstaff, Chief Judge, United State District Court

for the Southern District of Iowa. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-3163

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Roger Koehn, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa

Indian Hills Community College; *

James Lindenmayer, *

*

Appellees. *

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Submitted: April 15, 2004

Filed: June 9, 2004

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Before WOLLMAN, McMILLIAN and RILEY, Circuit Judges.

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McMILLIAN, Circuit Judge.

Roger Koehn appeals from a final order entered in the United States District

Court1

 for the Southern District of Iowa granting summary judgment in favor of

Indian Hills Community College (IHCC) and James Lindenmayer (together

defendants) on his claims alleging wrongful discharge in violation of the First

Amendment and state public policy. Koehn v. Indian Hills Community College,
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No. 4-02-CV-10273 (S.D. Iowa Aug. 5, 2003) (hereinafter “slip op.”). For reversal,

Koehn argues that the district court erred in holding as a matter of law that Koehn did

not engage in speech that is protected by the First Amendment or protected by a

clearly defined public policy under Iowa law. For the reasons stated below, we affirm

the order of the district court. 

Jurisdiction in the district court was proper based upon 28 U.S.C. §§ 1331,

1367(a). Jurisdiction on appeal is proper based upon 28 U.S.C. § 1291. The notice

of appeal was timely filed pursuant to Fed. R. App. P. 4(a). 

IHCC is a public employer. Lindenmayer was at all relevant times the Vice

President of Personnel and Administration at IHCC. Koehn began working at IHCC

as a night shift custodian in March 1984. As of July 12, 2001, Koehn was an

employee in good standing at IHCC and, on that date, was offered a continuation of

his “at will” employment with a standard increase in salary and benefits, subject to,

among other things, his continued satisfactory job performance. On August 9, 2001,

in compliance with state law, IHCC published in a local newspaper its annual

statement of disbursements, including a list of IHCC employees and their salaries.

In the early morning hours of August 24, 2001, Koehn was working the night

shift at IHCC. He had with him the August 9, 2001, newspaper which contained the

IHCC annual statement of disbursements. At approximately 1:30 a.m., Koehn and

two other night shift custodians were taking a regular meal break together, and they

examined the employee salary list in the newspaper that Koehn had brought to work.

One of them highlighted the salaries of numerous IHCC employees of interest to

them, including some of the custodial staff and supervisors. Shortly thereafter, an

assistant custodial supervisor on the night shift entered the room and saw the

highlighted list. Upon seeing that his compensation was less than several other night

shift custodians, he became upset. Another supervisor learned about the incident and

reported it to Lindenmayer. Lindenmayer discussed the matter with some of the
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The PERB subsequently dismissed Koehn’s complaint. See slip op. at 3.

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custodians and then decided to terminate Koehn. At the time of his termination,

Koehn was told by Lindenmayer that he was an “antagonist” and that his services

were no longer needed.

Koehn filed a “prohibited practices complaint” with the Iowa Public

Employment Relations Board (PERB), alleging that IHCC terminated him for

exercising rights granted under the Iowa Public Employment Relations Act.2

 While

that matter was pending before the PERB, Koehn filed the present action in federal

court, pursuant to 42 U.S.C. § 1983, alleging that defendants’ actions violated his

constitutional right to free speech (Count I) and violated state public policy (Count

II). Defendants moved for summary judgment on both counts, and the district court

granted their motion. This appeal followed.

We review a grant of summary judgment de novo. The question before the

district court, and this court on appeal, is whether the record, when viewed in the light

most favorable to the non-moving party, shows that there 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Where the unresolved

issues are primarily legal rather than factual, summary judgment is particularly

appropriate. See Crain v. Board of Police Comm'rs, 920 F.2d 1402, 1405-06 (8th Cir.

1990).

Upon de novo review, we agree with the district court that, although the IHCC

employee salary list could be viewed as a topic of public interest or concern, the

evidence showed beyond dispute that Koehn was “speaking solely as an

employee–and not as a concerned taxpayer” when he engaged in a conversation with

co-workers during a break regarding various IHCC employees’ salaries. Slip op. at
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8. As the district court noted, Koehn did not question the salaries as a misuse of

public funds, call for reforms in the method of determining salaries, or otherwise

voice any criticisms or concerns about the published salaries. Id. at 8-9.

Accordingly, the district court concluded as a matter of law that Koehn did not

engage in constitutionally protected speech. We agree with the district court’s

conclusion. See, e.g., Tuttle v. Missouri Dep’t of Agric., 172 F.3d 1025, 1033-34 (8th

Cir.) (affirming judgment as a matter of law for the defendants on the plaintiff’s claim

that he was terminated in violation of his right to free speech; holding that, although

the plaintiff had engaged in speech addressing salaries, promotions, and safety issues,

that speech was not constitutionally protected because the plaintiff “was speaking out

as an employee, not as a concerned citizen”), cert. denied, 528 U.S. 877 (1999). 

Regarding Koehn’s state law claim, the district court recognized that, even

though Koehn was an at-will employee, he may recover on a claim for wrongful

discharge under Iowa law if he can establish, among other things, that his termination

violated a clearly defined public policy of the state. See, e.g., Davis v. Horton, 661

N.W.2d 533, 535-36 (Iowa 2003) (an at-will employee asserting wrongful discharge

based on violation of public policy must establish, among other things, that the

discharge was the result of engaging in an activity that is protected by a clearly

defined public policy); Teachout v. Forest City Community School Dist., 584 N.W.2d

296, 299-300 (Iowa 1998) (“the employee’s activity must advance a well-recognized

and defined public policy of the state”). Koehn describes the pertinent public policy

as follows: “Iowa law clearly promotes the free dissemination of information

regarding government spending and promotes citizen knowledge and discussion of

public expenditures.” Brief for Appellant at 28. The district held, and we agree, that

Koehn’s state law public policy claim fails as a matter of law for the same reason that

his First Amendment claim fails as a matter of law. When Koehn conversed with coworkers about IHCC employee salaries, he was speaking merely as an employee, not

as a citizen or taxpayer advancing the dissemination of information or public
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discourse regarding government spending. In sum, Koehn cannot establish that he

engaged in an activity protected by a clearly defined public policy under Iowa law.

The order of the district court is affirmed.

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