FILED

United States Court of Appeals

Tenth Circuit

September 15, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DANIEL M. HESSE, 

Plaintiff-Appellee,

v.

TOWN OF JACKSON, WYOMING,

 Defendant, 

and

MARK BARRON; ROBERT

MCLAURIN; ROXANNE DEVRIES

ROBINSON; SCOTT ANDERSON, in

their individual capacities,

Defendants-Appellants.

No. 07-8032

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF WYOMING

(D.C. No. 06–CV–155–B)

Richard Rideout, Cheyenne, Wyoming, for Defendants-Appellants.

Gary Shockey, Jackson, Wyoming, for Plaintiff-Appellee.

Before BRISCOE, McKAY, and LUCERO, Circuit Judges.

McKAY, Circuit Judge.
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 Defendants–Appellants the mayor, town administrator, town clerk, and one

of the town council members of Jackson, Wyoming, appeal the district court’s

denial of qualified immunity in an employment termination case brought by

Plaintiff–Appellee, the former town attorney.

BACKGROUND

Plaintiff worked as Jackson, Wyoming’s town lawyer on a contract basis

from 1995 to 2005. The most recent version of Plaintiff’s contract with the town,

the 1999 version, provided for automatic renewal of Plaintiff’s two-year term of

employment under the contract unless either party gave written notice of a desire

to terminate the agreement at least 180 days prior to its termination date. Each

two-year term began on July 1, every other year. To prevent automatic renewal,

the town council needed to notify Plaintiff of its intent to terminate the agreement

by January of each renewal year. Plaintiff did not receive notice of termination in

January 2005 for the July 2005–June 2007 term of contract, and the contract was

automatically extended for that additional period. 

In March 2005, just before Plaintiff’s newest two-year term began but after

the time period for notice of termination had passed, Plaintiff had a heated

argument with the town administrator. This conversation was triggered when the

town clerk sent an employee to Plaintiff with a work-related request. Plaintiff

was upset at the request because he felt it was out of the scope of his duties, and
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he said as much to the employee. The employee complained to the town clerk,

apparently about the manner in which Plaintiff spoke to her. 

The town clerk then approached Plaintiff directly to discuss the situation

and told Plaintiff “you need to act in accordance with the [Town] values in your

dealings with [the employee].” (R. at 340.) Plaintiff responded, “You work for a

person [the town administrator] who has no [more] respect for those values or

ethics than the man in the moon and until he wants to get in shape with these

values, I’m not talking to you, get out of here.” (R. at 341.) By this comment,

Plaintiff was referring to the town administrator’s support of the mayor, who had

recently encouraged two large town land purchases that Plaintiff believed to be

inappropriate. After the conversation between Plaintiff and the town clerk, the 

clerk complained immediately to the town administrator, who then proceeded

directly to Plaintiff’s office to discuss the matter. 

Plaintiff explains he discussed several topics with the town administrator

during their inflammatory conversation, including the administrator’s own

compliance with town values, the advisability of the town’s recent land purchases,

and the town governing body’s adherence to open meeting laws. When discussing

the administrator’s adherence to town values, Plaintiff called the town

administrator a “liar” and suggested that the administrator was indeed a “whore”

for the mayor and town council, as the administrator had once described himself

in jest. (R. at 364, 538.) Toward the end of the conversation, Plaintiff requested
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that the town administrator not share with the town council the concerns Plaintiff

had voiced during the conversation.

 At some point during the conversation, the administrator’s cell phone rang. 

He fiddled with it, stopped the ringing, and put it in his pocket. The town clerk

was the person trying to reach the town administrator, and she tried twice to call 

him. On the second try, she realized that she was connected to his phone but that

he was speaking to Plaintiff, not to her. She began to listen to the conversation,

placing it on speaker phone in her office. At some point during the conversation,

a town council member entered the town clerk’s office and also eavesdropped on

the conversation. After some unspecified period of time, the town clerk and town

council member stopped listening to the argument and hung up the phone. The

eavesdropping town council member then informed the mayor about the

conversation, and the eavesdropping town clerk told a town financial officer, who

subsequently relayed to Plaintiff that Plaintiff’s argument with the town

administrator had been overheard.

In May or June of 2005, the mayor and town administrator contacted a

lawyer about how to terminate Plaintiff. On July 28, 2005, shortly after

Plaintiff’s newest two-year term had begun, the mayor called Plaintiff into his

office and told Plaintiff that he was requesting the town council to fire Plaintiff at

its August 1 meeting unless Plaintiff resigned. The mayor allegedly explained

that if Plaintiff resigned, the mayor would ask the town council to honor
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Plaintiff’s employment contract to pay him six months’ severance benefits under

the termination clause. Plaintiff wrote a resignation letter that day, which he

made effective August 1, and gave it to the mayor the same day. Plaintiff then 

received and accepted six months’ of severance pay and health benefits. 

After the six months had passed, Plaintiff sued the town and Defendants, in

their official capacities and as individuals, on various state and federal claims. 

Defendants filed a summary judgment motion against Plaintiff, but the district

court denied their motion on all claims, including their claim for qualified

immunity. Defendants then filed this interlocutory appeal on the issue of

qualified immunity.

DISCUSSION

“Orders denying qualified immunity before trial are appealable to the

extent they resolve abstract issues of law.” Clanton v. Cooper, 129 F.3d 1147,

1152 (10th Cir. 1997) (internal quotation marks omitted). We review the denial

of a summary judgment motion raising qualified immunity questions de novo,

Holland v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001), viewing the

evidence and drawing reasonable inferences therefrom in the light most favorable

to the nonmoving party using our ordinary summary judgment standard,

Lawmaster v. Ward, 125 F.3d 1341, 1346 (10th Cir. 1997). However, when

viewing evidence from summary judgment orders deciding qualified immunity

questions, we must not determine whether an issue of fact is genuine. See
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Johnson v. Jones, 515 U.S. 304, 319 (1995). Nevertheless, we may determine

whether “a given set of facts violates clearly established law.” See id. In

addition,

[b]ecause of the underlying purposes of qualified immunity, we

review summary judgment orders deciding qualified immunity

questions differently from other summary judgment decisions. After

a defendant asserts a qualified immunity defense, the burden shifts to

the plaintiff, and the plaintiff must first establish that the defendant's

actions violated a constitutional or statutory right. 

Holland, 268 F.3d at 1185 (internal citation and quotation marks omitted). 

The threshold question, then, in a qualified immunity appeal from summary

judgment is: “Taken in the light most favorable to the party asserting the injury,

[without determining whether there is a genuine fact issue,] do the facts alleged

show the [official’s] conduct violated a constitutional right?” Saucier v. Katz,

533 U.S. 194, 201 (2001); see Reeves v. Churchich, 484 F.3d 1244, 1250 (10th

Cir. 2007). “If the court concludes no constitutional right has been violated, no

further inquiry is necessary and the defendant is entitled to qualified immunity.” 

Reeves, 484 F.3d at 1250. However, if the inquiry indicates a violation of a

constitutional right occurred, we must then “determine whether that right was

clearly established at the time of the alleged violation.” Conn v. Gabbert, 526

U.S. 286, 290 (1999); see Reeves, 484 F.3d at 1250. If “the plaintiff fails to

satisfy either part of this two-part inquiry, the court must grant the defendant
1

 Because we conclude no individual Defendant violated any of Plaintiff’s

federal rights, we refer to Defendants as a group for ease in reading, even though

they appear before us as individuals.

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qualified immunity.” Smith v. Cochran, 339 F.3d 1205, 1211 (10th Cir. 2003)

(internal quotation marks omitted).

In this case, we conclude that the matter is determined at the first stage of

the inquiry. As an initial matter, we reject Defendants’ argument that a

constitutional violation occurred only if Defendants violated federal law. A §

1983 action must be based on the violation of a federal right not a federal law. 

The Supreme Court has explained:

[t]he problem is not whether state law has been violated but whether

an inhabitant of a State has been deprived of a federal right by one

who acts under color of any law. He who acts under color of law

may be a federal officer or a state officer. He may act under color of

federal law or of state law. The statute does not come into play

merely because the federal law or the state law under which the

officer purports to act is violated. It is applicable when and only

when someone is deprived of a federal right by that action. The fact

that it is also a violation of state law does not make it any the less a

federal offense punishable as such.

Screws v. United States, 325 U.S. 91, 108 (1945) (internal quotation marks

omitted). Therefore, to defeat Defendants’ qualified immunity request, Plaintiff

must demonstrate that Defendants violated one of his federal rights, not a federal

law.1

 Consistent with this standard, Plaintiff contends Defendants violated his

federal rights to a property interest in continued public employment, free speech,

and freedom from unreasonable searches and seizures.
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I. Continued Public Employment

We first review Plaintiff’s claim that Defendants violated his

constitutionally protected property interest in continued public employment. “It

is well-established constructive discharge from employment is actionable under §

1983 if an employee possesses a protectable property or liberty interest in his

employment.” Lighton v. Univ. of Utah, 209 F.3d 1213, 1221 (10th Cir. 2000). 

In the employment context, a property interest is “a legitimate expectation in

continued employment.” Id. (internal quotation marks omitted). “We determine

whether such a property interest exists by looking at state law.” Id.; see Bishop v.

Wood, 426 U.S. 341, 344 (1976).

Under Wyoming law, “[p]roperty interests in continued public employment

are created and defined by independent sources such as state statutory law,

regulations or the terms of employment.” Lucero v. Matthews, 901 P.2d 1115,

1119 (Wyo. 1995); see also Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,

577–78 (1972) (explaining state statutes or terms of appointment may provide

employees with protected property interests in employment). Essentially, a

Wyoming public employee whose employer may fire him at will for any reason or

for no reason at all does not possess a property interest in continued public

employment, but an employee who may be fired only for cause, such as “[a]

nonprobationary, as well as a tenured, public employee[,] is entitled to written
2

 This statute applies to first class cities. Jackson became a first class city

in 2004. See Town Council Proceedings, Jackson, Wyo. (2004),

http://www.townofjackson.com:8307/agendas/2004/2004pkts/050304/Consent/

(continued...)

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notice of the charges against him, an explanation of the employer's evidence, and

an opportunity to present his side of the story.” Lucero, 901 P.2d at 1120

(explaining a nonprobationary employee whose job was statutorily and

constitutionally protected was entitled to notice and an opportunity to be heard

and could only be fired for cause); see also Parker v. Bd. of Regents of the Tulsa

Junior Coll., 981 F.2d 1159, 1160 (10th Cir. 1992) (analyzing whether a tenured

public employee who could have been “terminated only for ‘just cause’” had

voluntarily resigned from her position, thus waiving her right to her protected

property interest in continued public employment).

In this case, a state statute, a town ordinance and resolution, and an

employment contract all purportedly define Plaintiff’s terms of employment. We

now consider whether any of these documents provided Plaintiff with a

constitutionally protected property interest in continued public employment

Wyoming Statute § 15-3-204(a) and the 1995 Town Ordinance

The Wyoming statute directly applicable to the appointment and removal of

a town attorney states: “Unless otherwise provided by ordinance, the . . . attorney

. . . shall be appointed by the mayor with the consent of the governing body and

may be removed by the mayor.” Wyo. Stat. Ann. § 15-3-204(a) (2007).2

 Thus,
2

(...continued)

041904wk.pdf; Town Council Agenda Documentation (2004),

http://www.townofjackson.com:8307/agendas/2004/2004pkts/070604/Ordinances/

charters.pdf.

3

 Although the statute does not specifically indicate that a mayor has the

power to remove the town attorney without cause, the Wyoming Supreme court

has interpreted the statute as granting mayors the absolute right to hire and fire

town officers, such as town attorneys, who hold managerial, policy-making

positions. See Carlson v. Bratton, 681 P.2d 1333, 1335–37 (Wyo. 1984) (holding

that town officers appointed by the mayor have no property right in their

continued public employment because reasons of public policy grant a mayor the

prerogative to work with officers who concur with the mayor’s policies); see also

Farnsworth v. Town of Pinedale, 968 F.2d 1054, 1057 (10th Cir. 1992)

(concluding that Wyoming statutory language related to incorporated towns

provides an incoming mayor with the authority to replace appointed town officers

at the end of their respective terms of employment). The town attorney position

is a “position[] of management and the appointee[] thereto serve[s] at the pleasure

of the mayor.” Carlson, 681 P.2d at 1339.

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this statute expressly explains a town attorney may be removed by the mayor

unless an ordinance provides otherwise.3

 “‘Ordinance’ means a legislative

enactment of general effect validly adopted by the governing body of any city or

town.” Wyo. Stat. Ann. § 15-1-101 (2007). The Wyoming Supreme Court has

examined the difference between an ordinance and a resolution, stating that “a

resolution deals with matters of a special or temporary character; an ordinance

prescribes some permanent rule of conduct or government, to continue in force

until the ordinance is repealed.” Mathewson v. City of Cheyenne, 61 P.3d 1229,

1233 (Wyo. 2003) (internal quotation marks omitted). It has also explained that

“[a]n ordinance is distinctively a legislative act; a resolution, generally speaking,

is simply an expression of opinion or mind or policy concerning some particular
4

 The phrase “unless otherwise provided by ordinance” was added to the

statute in 1997. See 1997 Wyo. Sess. Laws 68. We do not address which

documents describing Plaintiff’s employment terms and conditions might have

been binding prior to 2005. We conclude only that the 1995 town resolution is

one of the binding documents we must analyze to address the 2005 claim.

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item of business coming within the legislative body's official cognizance,

ordinarily ministerial in character and relating to the administrative business of

the municipality.” Cooper v. Town of Pinedale, 1 P.3d 1197, 1207 (Wyo. 2000)

(quoting 5 Eugene McQuillan, Municipal Corporations, Nature and Operation of

Ordinances § 15.02, at 59 (3d ed. 1996)). 

In this case, the state statute requires exceptions to the mayor’s removal

power to be provided by ordinance.4

 Jackson adopted Ordinance 499 in 1995,

establishing the office of town attorney and providing that the terms and

conditions of employment, duties, and responsibilities of the town attorney were

to be established by resolution. See Jackson, Wyo., Ordinance 499 (1995),

available at http:// www.townofjackson.com/ (follow “Jackson Government”

menu hyperlink; then follow “Ordinances & Resolutions” hyperlink; then follow

“Search Municipal Ordinances” hyperlink; then enter “Ordinance 499" into search

box; then follow “Ordinance 499" hyperlink). Because the town passed an

ordinance designating the process by which Jackson’s town attorney could be

appointed and removed, we conclude the process so designated supercedes the

default removal provisions provided by the current state statute, even though the
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designated process itself involved a resolution. Thus, we consider the town’s

1995 resolution, established by ordinance, to be one of the binding documents

under which we must analyze Plaintiff’s claims.

The 1995 Town Resolution

The town resolution provides: “The Town Attorney shall be hired and may

be removed by the mayor, by and with the advice and consent of a majority of the

Town Council.” Resolution 95-10, available at http:// www.townofjackson.com/

(follow “Jackson Government” menu hyperlink; then follow “Ordinances &

Resolutions” hyperlink; then follow “Search Municipal Resolutions” hyperlink;

then enter “95-10”into search box; then follow “Resolution 95-10” hyperlink). 

The Carlson court indicated that “limiting phrase[s],” Carlson, 681 P.2d at 1336,

such as “by and with the advice and consent of the city council,” id. at 1335 n.1,

and “according to conditions fixed by the governing body” could not “be taken to

hamstring the mayor in controlling his executive duties,” id. at 1336. The court

further held that a town officer does not have a “property right in the office.” 

Carlson, 681 P.2d at 1337. 

We note that the town resolution provides that the town attorney “shall be .

. . subject to all Town of Jackson personnel policies, regulations and procedures,

except as hereinafter provided.” Resolution 95-10. However, we conclude the

express resolution language giving the mayor the power to remove the town
5

 We note that this precedent predates the 1997 amendment to the statute. 

However, because we conclude Plaintiff’s contract did not alter the mayor’s

removal power, we need not and do not address whether the court-created

contractual exception to the statute survived the 1997 amendment.

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attorney trumps any conflicting general town policies. Thus, based on the

resolution’s express language and Wyoming case law interpreting similar

language, we conclude the town resolution provided the mayor with the power to

remove Plaintiff at will. Therefore, we hold that the 1995 town resolution does

not provide Plaintiff with a constitutionally protected interest in continued public

employment.

The Contract

We next turn to the question of whether Plaintiff had a property interest in

his continued public employment by contractual arrangement. Wyoming case law

interpreting § 15-3-204(a) allows for changes to be made by contract. See

Carlson, 681 P.2d at 1339 (explaining officers such as town attorneys “do[] not

have tenure in employment unless such tenure is established” by statute or by

contract, among other things).5

 We therefore also analyze Plaintiff’s claim under

his contractual provisions. 

The contracts Plaintiff signed with the town in 1995, 1997, and 1999

purport to define Plaintiff’s terms and conditions of employment. Plaintiff’s 1999

contract, if valid, automatically renewed unless either party gave advance notice
6

 The contract gives the town council the power to terminate the town

(continued...)

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of termination. The 1999 contract states that it “establish[es] certain conditions

of employment” and “provide[s] a just means for terminating [Plaintiff’s] services

at such time as . . . when Employer may otherwise desire to terminate [Plaintiff’s]

employ.” (R. at 668.) The contract provides that “[n]othing in this agreement

shall prevent, limit or otherwise interfere with the right of the Town Council to

terminate the services of the Employee at any time, subject only to the provisions

set forth in Section 4, paragraph A(1) and A(2), of this agreement.” (R. at 669.) 

Section 4 then provides in pertinent part:

In the event [Plaintiff] is terminated by the Town Council before

expiration of the aforementioned term of employment without cause,

and during such time that [Plaintiff] is willing and able to perform

his duties under this agreement, then in that event Employer agrees

to pay [Plaintiff] his regular salary for six (6) months and his health

insurance coverage for six (6) months with the same eighteen month

provision as provided for in he [sic] Town of Jackson Personnel

Policy Manual . . . .

. . .

In the event [Plaintiff] is terminated for just cause, then

Employer shall have no obligation to pay any severance sum

designated in this agreement.

(R. at 670.) Thus, the express contract language does not support Plaintiff’s

contention that his contract provides him with a protected property interest in

continued public employment because the contract makes it abundantly clear that 

Plaintiff’s employer could terminate him without cause at any time.6

 
6

(...continued)

attorney, while the resolution gives the power of removal to the mayor. We need

not address the differences between the two terminating entities because, in any

event, both entities are entitled to qualified immunity for Plaintiff’s discharge

based on our conclusion that Plaintiff had no constitutionally protected property

interest in his continued public employment under either the contract or the

resolution. 

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Although Plaintiff argues that he was a nonprobationary employee and thus

that he could be fired only for cause, we reject this contention based on the

differences between Plaintiff’s job and the jobs of employees held to be

nonprobationary in Lucero and Parker, the two most relevant cases. In Lucero, a

sheriff who was terminated had been designated by statute as a “sworn

nonprobationary, full-time” deputy. Lucero, 901 P.2d at 1119. The statute

provided a means for his termination and created “a property right in the position

of a full-time deputy sheriff by requiring that any termination of employment be

for cause and after notice and opportunity for a hearing.” Id. at 1119–20

(emphasis added). As a nonprobationary employee who could be fired for cause

only, the Lucero plaintiff enjoyed a constitutionally protected right of continued

public employment and was protected by the safeguards designated to secure that

right. 

Likewise, in Parker, the court made clear at the outset that it was analyzing

the alleged resignation of a tenured professor who could only be terminated for

“just cause.” Parker, 981 F.2d at 1160 (internal quotation marks omitted). The
7

 The only property interest Plaintiff arguably might have retained upon

termination without cause was the six months’ salary and insurance coverage

package provided by contract for such a case. We do not address whether

Plaintiff was terminated with or without cause because that issue is not before us. 

In any event, because Plaintiff actually received six months’ salary and insurance

coverage after leaving the town’s employ, we conclude he cannot maintain a

claim that Defendants violated any protected property interest in that regard.

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court explained the professor “had a constitutionally protected property interest in

employment because she could only be discharged pursuant to her employee

handbook for just cause.” Id. at 1161. 

Wyoming employees who serve in managerial, policy-making positions

serve at the pleasure of the mayor unless specified otherwise by statute, contract,

or “rules and regulations pursuant to statute or . . . having the force of contract.” 

Carlson, 681 P.2d at 1339. Because Plaintiff was hired pursuant to a contract

allowing for termination without cause, unlike the employees in Lucero and

Parker, we conclude that Plaintiff was not a nonprobationary employee and that

he did not have a constitutionally protected property interest in continued public

employment.7

 

Neither the town ordinance/resolution nor Plaintiff’s contract provide

Plaintiff with a constitutionally protected property interest in continued public

employment. Plaintiff has thus failed to meet the first prong of the qualified

immunity analysis on his first federal claim. We therefore need not consider the

second prong. Because Plaintiff’s claim to a protected property interest in
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continued public employment fails, we do not address any of the related issues

Plaintiff raises in connection with that alleged violation, such as his due process

and equal protection claims.

II. Free Speech

The second federal rights violation Plaintiff alleges is a violation of his

constitutionally protected right of free speech. Plaintiff bases this claim on the

town clerk’s and town council member’s eavesdropping on his conversation with

the town administrator and the mayor’s subsequent alleged firing of Plaintiff in

retaliation for Plaintiff’s statements made during that heated interchange. 

Our first inquiry under these circumstances is whether the employee spoke

“pursuant to [his] official duties.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)

(holding that when public employees make statements pursuant to their official

duties, they are not entitled to the same constitutional insulation the First

Amendment may provide to public employees who make statements outside the

course of performing their duties); see also Brammer-Hoelter v. Twin Peaks

Charter Acad., 492 F.3d 1192, 1202 (10th Cir. 2007) (stating explicitly that

Garcetti adds an initial step to the now five-step “Garcetti/Pickering” analysis). 

Three months after the district court filed its order in this case, the BrammerHoelter court clarified (1) that the Garcetti/Pickering analysis requires us to first

analyze whether the speech occurred pursuant to the public employee Plaintiff’s
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official duties and (2) that the inquiry ends after that initial step if the court

answers this legal question in the affirmative. See Brammer-Hoelter, 492 F.3d at

1202–03 & n.4.

While “employees retain the prospect of constitutional protection for their

contributions to the civic discourse,” Garcetti, 547 U.S. at 422, they do not have

First Amendment protection for statements made “pursuant to employment

responsibilities,” id. at 423–24. See also Casey v. W. Las Vegas Indep. Sch. Dist.,

473 F.3d 1323, 1328 (10th Cir. 2007) (“[W]e are obliged to ask whether

[plaintiff] met her burden by providing evidence that her expressions were made

in her capacity as a citizen and not pursuant to her ‘official duties.’”); Greene v.

Bd. of County Comm’rs, 472 F.3d 794, 798 (10th Cir. 2007) (“[T]he crux of our

inquiry in this case is whether [plaintiff’s] activities . . . were pursuant to her

duties . . . .”). “If the employee speaks pursuant to his official duties, then there

is no constitutional protection because the restriction on speech ‘simply reflects

the exercise of employer control over what the employer itself has commissioned

or created.’” Brammer-Hoelter, 492 F.3d at 1202 (citing Garcetti, 547 U.S. at

422). Thus, “speech relating to tasks within an employee’s uncontested

employment responsibilities is not protected from regulation.” Brammer-Hoelter,

492 F.3d at 1203. The determination of whether a public employee speaks

pursuant to official duties is a matter of law. See id. (stating that the district court
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resolves the first three steps of the Garcetti/Pickering analysis while the trier of

fact ordinarily resolves the last two.)

Viewing the facts in the light most favorable to the Plaintiff and without

making any determination as to whether a genuine issue of fact exists, we

conclude as a matter of law that Plaintiff’s argument with the town administrator

occurred in the course of his official employment responsibilities based on the

undisputed facts concerning the context in which the conversation arose. 

According to both Plaintiff and the town administrator, the town administrator

came to Plaintiff’s office to discuss Plaintiff’s interaction with another employee. 

The town administrator approached Plaintiff the same day the town clerk had

complained to the town administrator about Plaintiff’s disregard for town values

in his dealings with other town employees. Although Plaintiff explains he and the

town administrator heatedly discussed compliance with town values, the 810 West

project, the Karns Meadow project, and public meeting laws before the town

administrator left Plaintiff’s office, we cannot and need not address whether the

subject matter of the conversation creates a genuine issue of fact. However, we

may conclude as a matter of law that Plaintiff spoke pursuant to his official duties

given the lack of factual dispute regarding the context in which the conversation

occurred. 
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Moreover, Plaintiff’s contract explains that administrative issues “shall be

subject to the administration of the Town Administrator.” (R. at 668–69). It is

undisputed that the parties’ conversation arose in the context of Plaintiff and the

town administrator needing to discuss the administrative issue of Plaintiff’s

treatment of town employees. According to Plaintiff’s contractual terms and

conditions of employment, that topic of discussion would appropriately be

directed to the town administrator. We conclude Plaintiff’s conversation with the

town administrator occurred pursuant to his official duties because we cannot

reasonably characterize Plaintiff’s speech arising in the undisputed context of a

conversation occurring for the purpose of addressing administrative issues and

directed to the contractually appropriate party as speech occurring outside the

scope of his employment responsibilities. Plaintiff therefore fails to pass the first

step of the Garcetti/Pickering analysis. 

We thus conclude Plaintiff’s conversation with the town administrator did

not enjoy First Amendment protection, and therefore none of Defendants’ alleged

actions related to this conversation could have violated Plaintiff’s right to free

speech. We thus hold that Plaintiff has failed to satisfy the first prong of the

qualified immunity analysis as to this claim, and we conclude each Defendant is

entitled to qualified immunity as to this issue.

III. Searches and Seizures
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We construe Plaintiff’s third claim to be an assertion that the

eavesdropping on his conversation with the town administrator constituted an 

illegal search and seizure under the Fourth Amendment. See U.S. Const. amend.

IV. However, we conclude that Plaintiff had no reasonable expectation of privacy

in his work-related, run-of-the-mill quarrel with the town administrator in

Plaintiff’s office. We therefore hold Plaintiff cannot satisfy the first prong of the

qualified immunity analysis as to this claim and conclude each Defendant is

entitled to qualified immunity as to this issue. 

We REVERSE the order of the district court denying qualified immunity

and REMAND this case with direction to enter judgment granting qualified

immunity to all Defendants on all federal claims. We do not address any

remaining state claims.