PUBLISH UNITED STATES COURT OF APPEALS Filed 10/18/96 TENTH CIRCUIT-2-

CATHERINE L. WITHIAM,

Plaintiff-Appellee,

v. BAPTIST HEALTH CARE OF OKLAHOMA, INC.; ROLAND GEE,

Defendants-Appellants, and LOGAN HOSPITAL AND MEDICAL CENTER AUTHORITY; JOEL TATE; KENNY DAVIS,

Defendants.

______________________________ CATHERINE L. WITHIAM,

Plaintiff-Appellee,

v. BAPTIST HEALTH CARE OF OKLAHOMA, INC.; LOGAN HOSPITAL AND MEDICAL CENTER AUTHORITY; ROLAND GEE; KENNY DAVIS,

Defendants, No. 95-6265

No. 95-6313-3- and JOEL TATE,

Defendant-Appellant.

______________________________ CATHERINE L. WITHIAM,

Plaintiff-Appellee,

v. BAPTIST HEALTH CARE OF OKLAHOMA, INC.; ROLAND GEE,

Defendants-Appellants, and LOGAN HOSPITAL AND MEDICAL CENTER AUTHORITY; JOEL TATE; KENNY DAVIS,

Defendants. No. 95-6440

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-94-892-W)1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materially assist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ases are therefore ordered submitted without oral argument.

-4- Submitted on the briefs: David L. Kearney, Gable & Gotwals, Edmond, Oklahoma , for Plaintiff-Appellee. Jack S. Dawson, James A. Scimeca, and Leslie L. Lyn ch, Miller, Dollarhide, Dawson, & Shaw, Oklahoma City, Oklahoma, for Defend ants-Appellants.
Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.

Plaintiff’s civil rights claims were premised on an alleged retaliatory termination by her employer, a hospital management company. The primary question presented is whether an employee’s public endorsement of a particular company to manage a public hospital constitutes spe ech entitled to First Amendment protection. The speech in question is no t of sufficient public concern to warrant such protection as the premise of a reta liatory termination claim under 42 U.S.C. § 1983. These three appeals arise out of the same facts. 1 Plaintiff Catherine L. Withiam was employed from 1972 until mid-1993 by a state public-trust hospital,-5-

now known as Logan Hospital and Medical Center. Atthe time of her discharge, plaintiff had been Director of Personnel Services f or fifteen years. The hospital was managed by Quorum Healthcare Resources, Inc. un til 1992, when the Logan Hospital and Medical Center Authority, through its Board of Trustees, changed management companies. On July 23, 1992, the Author ity scheduled a meeting of the trustees to discuss the change, which at that t ime was a mere proposal. At this meeting, plaintiff and ten other hospital managers presented a signed resolution which stated: On behalf of the managers listed below, representin g their respective departments, let it be resolved that we the undersi gned voice our opinion in approval of retaining the current manage ment contract with Quorum Health Care Resources, Inc. We have signed this document freely and at our own will to provide the Board of Trustees of Logan Hospital and Medical Center, our input for the future growth and stability of the ho spital. Dated this July 22, 1992. 3 Appellants’ App. (Nos. 95-6265, 95-6313) at 895. The Authority decided to contract instead with defe ndant Baptist Healthcare of Oklahoma, Inc. (BHO) to manage the ho spital. BHO named defendant Joel Tate interim administrator; he serve d for approximately ninety days. Defendant Roland Gee took over as administrator on October 1, 1992, and Mr. Tate left shortly thereafter. Mr. Gee terminat ed plaintiff in July 1993.-6-

Plaintiff sued several defendants on a number of th eories, but only two claims went to trial: retaliatory termination for exercising her First Amendment right to free speech in violation of 42 U.S.C. § 19 83 and Oklahoma public policy. While defendants asserted that the termination resu lted from a reduction in force, a jury found in favor of plaintiff and against defe ndants BHO and Gee on both claims and awarded plaintiff compensatory damages o f $226,279.49. The jury also awarded punitive damages of $25,000 against BH O and $1.00 against Gee. The district court awarded plaintiff her attorney’s fees. The jury found against plaintiff on her claims against defendant Tate. Th e district court denied Tate’s subsequent motion for attorney’s fees. This court has jurisdiction over all three appeals under 28 U.S.C. § 1291.

No. 95-6265 In No. 95-6265, defendants BHO and Gee argue that: (1) plaintiff’s acts of signing and presenting the resolution to the hospit al trustees are not protected speech under the First Amendment; (2) they are not state actors for the purposes of § 1983; (3) Burk v. K-Mart Corp ., 770 P.2d 24 (Okla. 1989) has not been expanded to include a public policy exception to employment-at-will on the basis of protected speech; and (4) the district court err ed in allowing the jury to award punitive damages. Resolution of the first of these issues is dispositive.-7-

Supreme Court cases establish the decisional framew ork. First, the employee must show that her speech involves a matte r of public concern. Connick v. Myers , 461 U.S. 138, 146-47 (1983). Second, if the empl oyee’s expression meets this threshold requirement, the employee must then show that her interest in the particular expression outweighs the employer’s interest in efficiently performing its public service. Pickering v. Board of Educ ., 391 U.S. 563, 568 (1968). Third, the employee must demonstr ate that her speech was a substantial or motivating factor in the employer’s adverse employment action. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 287 (1977). Plaintiff’s expression of support for management in the resolution fails to meet the threshold requirement of constituting a matter of sufficient public concern to warrant First Amendment protection. Spe ech involves a matter of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community.” Connick, 461 U.S. at 146. It is not enough that the subject matter be of publ ic concern; the content of the expression must also be of public concern. Wilson v. City of Littleton , 732 F.2d. 765, 769 (10th Cir. 1984). The content is the “cru x of the public concern content inquiry.” Wren v. Spurlock, 798 F.2d 1313, 1317 n.1 (10th Cir. 1986), cert. denied, 479 U.S. 1085 (1987). General public interest is not the equivalent of public concern for First Amendment purposes. Koch v. City of Hutchinson , 847-8-

F.2d 1436, 1445 (10th Cir. 1988). To be protected speech, the expression must

“ sufficiently inform the issue as to be helpful to the public in evaluating the conduct of government.” Wilson , 732 F.2d at 768. The resolution plaintiff and the other managers sig ned and presented to the hospital’s trustees expressed nothing more than the bare opinion that the thencurrent management company should be retained. The resolution offered no reasons or explanation at all for the opinion it expressed. Although the resolution was presented at a trustees’ meeting, it simply off ered nothing at all to inform the public about the management of the hospital. It wa s neither an exposé of government ineptitude, waste or corruption nor a re citation of reasons, arguments or facts supporting retention of contract managemen t. The resolution was but a bald, unadorned and nonspecific endorsement. As su ch, it did not involve a matter of public concern warranting First Amendmentprotection. Because the resolution is undeserving of First Amen dment protection, we reverse the judgment based on the jury verdict. Pl aintiff’s failure to present evidence of any protected expression also undermine s the very premise of her Oklahoma public policy claim. It is therefore unne cessary to decide whether defendants BHO and Gee are state actors for purpose s of § 1983, or whether they are liable for punitive damages.-9- No. 95-6440 In No. 95-6440, defendants BHO and Gee appeal from the district court’s award under 42 U.S.C. § 1988 of attorney’s fees to plaintiff as the prevailing party on her claims against them. 3 Appellants’ Ap p. at 894. Because we reverse on the merits of plaintiff’s claims, we also revers e the award of attorney’s fees to plaintiff.

No. 95-6313 In No. 95-6313, defendant Joel Tate contends the di strict court abused its discretion in denying his motion for attorney’s fee s under 42 U.S.C. § 1988(b) after he successfully defended plaintiff’s claims a gainst him. We review the denial of a request for attorney’s fees under § 198 8 for abuse of discretion. Operating Eng’rs Local Union No. 3 v. Bohn , 737 F.2d 860, 863 (10th Cir. 1984). “Underlying findings are reviewed under the clearly erroneous standard, while the district court’s statutory interpretation and legal analysis are subject to de novo review.” Carter v. Sedgwick County , 36 F.3d 952, 956 (10th Cir. 1994). Under § 1988(b), the district court may award fees only if plaintiff’s claims were “‘frivolous, unreasonable, or without foundati on, even though not brought in subjective bad faith.’” Figures v. Board of Pub. Utils. , 967 F.2d 357, 362 (10th Cir. 1992) (quoting Christiansburg Garment Co. v. EEOC , 434 U.S. 412, 4212 Tate ended his employment at the hospital approximately nine months

before Withiam was terminated.

3 Tate’s motion for directed verdict was not submitte d as part of the record. -10- (1978)). Without making any specific factual findi ngs, the district court concluded that plaintiff’s claims against defendantwere not frivolous, unreasonable, or without foundation. 3 Appellants’ App. (Nos. 95-6265, 95- 6313) at 827-28. Tate argues in his Brief that it is Withiam’s failu re to present evidence showing Tate was causally connected to her terminat ion 2 which made Withiam’s claim frivolous, unreasonable, or without foundatio n. So far as this court is able to discern, however, Tate never presented that argu ment to the district court. Based upon the record provided us, 3 the only defense motions which specifically referenced Tate as a defendant were hi s motion to dismiss plaintiff’s amended complaint and his motion for attorney’s fee s. Tate’s motion to dismiss plaintiff’s amended complaint addressed jurisdictio nal and state actor issues common to all defendants. 1 Appellants’ App. (Nos. 95-6265, 95-6313) at 72-75. Tate’s motion for attorney’s fees simply argued that he was entitled to fees and costs under § 1988(b) because he was the prevailing party. 3 Appellants’ App. (Nos. 95-6265, 95-6313) at 767-801. The other moti ons presented by the defendants again dealt only with issues common to a ll defendants. None of the4 In fact, as indicated above, Tate never argued thatWithiam’s case was

frivolous, unreasonable, or without foundation for any reason. Instead, he simply asserted that he was entitled to his fees as a prev ailing party. -11- defense motions made specific mention of the argume nt that Withiam failed to present any evidence showing Tate was causally conn ected to her termination. In sum, as reflected in the record presented to thi s court, Tate never argued to the district court that Withiam’s claim was friv olous, unreasonable, or without foundation based on a failure of proof of causation

. 4 Thus, because that argument was never made below, this court cannot find the di strict court abused its discretion in denying fees on that ground. Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992). We therefore affir m the district court’s conclusion that Tate is not entitled to an award of attorney’s fees.

CONCLUSION In No. 95-6313, the judgment of the United States D istrict Court for the Western District of Oklahoma is AFFIRMED . In Nos. 95-6265 and 95-6440, the judgment is REVERSED

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