* This order and judgment is not binding precedent, e xcept under the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

### MAY 19 1999 

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

ANTHONY C. HENRY,

Plaintiff-Appellant,

v. OKLAHOMA COUNTY BOARD OF COUNTY COMMISSIONERS, a Body Politic; SHIRLEY A. DARRELL, Individually and in her official capacity as County Commissioner for Oklahoma County,

Defendants-Appellees. No. 98-6283 (D.C. No. 97-CV-1591) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , BARRETT , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff Anthony C. Henry appeals from the distric t court’s grant of summary judgment dismissing his 42 U.S.C. § 1983 ci vil rights complaint. He asserts that defendants violated his First Amend ment rights by terminating him allegedly because he cooperated with a criminal inv estigation. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms. Plaintiff was employed by Oklahoma County as a roadequipment operator. He worked in the county district supervised by County Commissioner Shirley A. Darrell, who had final decision-making authority ov er the hiring and firing of employees within that district. In June 1995, duri ng a grand jury investigation into alleged misappropriation of county funds on ro ad and construction projects, plaintiff was questioned by the county district att orney’s office and the Federal Bureau of Investigation. He cooperated with the cr iminal investigation and kept in contact with investigators on a monthly basis th rough November 1996. Plaintiff told a few coworkers he was cooperating, but did not tell any of his supervisors. As a result of plaintiff’s reports of possible misuse of county assets, an unmarked FBI van observed the county work site w here plaintiff was working on two occasions, once in June 1996, and once in No vember 1996. Plaintiff’s-3-

supervisor asked him if he knew anything about the van, but plaintiff said he did not. In January 1997, plaintiff used profanity and racia l slurs towards a supervisor, refusing to follow the supervisor’s work order, He also became angry and used profanity during an investigation of this incident by a project manager. His behavior was reported to Commissioner Darrell, who terminated his employment and immediately issued a policy statemen t to county employees that the use of profanity against supervisors would no l onger be tolerated. Plaintiff then filed this § 1983 action. Generally, public employment cannot be conditioned “on a basis that infringes the employee’s constitutionally protectedinterest in freedom of expression.” Connick v. Myers , 461 U.S. 138, 142 (1983). The district court concluded that plaintiff’s cooperation with the cri minal investigation was protected speech because it touched on a matter of public concern, and that the importance of the speech outweighed the county’s interest in an efficient and effective workplace. See Lytle v. City of Haysville , 138 F.3d 857, 863 (10th Cir. 1998) (describing four-part test used to determine if public employer has contravened a public employee’s free speech rights)

. Defendants presented evidence, however, that none o f the county commissioners or the individuals involved in plaint iff’s termination had any-4-

knowledge of plaintiff’s cooperation with the crimi nal investigation until he filed his § 1983 action, that his cooperation had played no role in his termination, and that the sole reason he was terminated was his insu bordination, profanity and racial slurs. The district court concluded that pl aintiff failed to come forward with any evidence that his speech had played a subs tantial or motivating factor in his termination. See id. at 863. Plaintiff concedes that he never discussed his coop eration with any supervisor or any of the defendants, and he concede s the only reason ever given for his termination was his admitted insubordinatio n and use of profanity and racial slurs. However, plaintiff asserts a trier o f fact could infer that defendants terminated him because of his cooperation in the cr iminal investigation because (1) defendants were aware of an earlier, unrelated criminal investigation involving the use of county funds, (2) there is no record of another employee being terminated for using profanity, and (3) plain tiff’s supervisor asked him if he knew anything about the unmarked van observing the work site. This evidence is nothing more than pure speculation, and the distric t court correctly held that it is insufficient to send the case to the jury on the issue of motivation. See Hom v. Squire , 81 F.3d 969, 974-75 (10th Cir. 1996) (plaintiff’s mere belief that he was dismissed in retaliation for exercising protected s peech is insufficient, by itself, to defeat a summary judgment motion).-5-

After a de novo review of the parties’ briefs and c ontentions, the district court’s order, and the entire record on appeal, thi s court finds no reversible error and affirms for substantially the same reasons set forth in the district court's order granting the motion for summary judgment. The judg ment of the United States District Court for the Western District of Oklahomais AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge