F I L E D

United States Court of Appeals

Tenth Circuit

JUN 13 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONNIS F. KENT,

Plaintiff - Appellant,

v.

BRUCE MARTIN, in his individual

capacity and in his official capacity as

County Clerk of Alfalfa County,

Oklahoma; ALFALFA COUNTY

BOARD OF COUNTY

COMMISSIONERS,

Defendants - Appellees.

No. 00-6144

Appeal from the United States District Court

for the Western District of Oklahoma

(D.C. No. CIV-99-245-M)

Phyllis L. Walta, Walta & Walta, Hennessey, Oklahoma, for Plaintiff-Appellant.

James L. Gibbs, II (Chris J. Collins and Michael L. Carr on the brief), Collins,

Zorn, Jones & Wagner, P.C., Oklahoma City, Oklahoma, for DefendantsAppellees.

Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.
1

 Kent’s alleged performance deficiencies between July 1996 and February

1997 included gossiping, failure to relay phone messages, failure to follow

(continued...)

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Donnis Kent, a former employee of the Alfalfa County Clerk’s office,

brought this action under 42 U.S.C. § 1983 alleging retaliatory discharge in

violation of the First Amendment. Kent’s employment as a deputy clerk was

terminated six months after her unsuccessful campaign to unseat Bruce Martin as

County Clerk and the publication in a local newspaper of her statements

concerning Martin’s job performance. She appeals the district court’s grant of

summary judgment for defendants Martin and the Board of County

Commissioners. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.

I

Kent was employed as Second Deputy to the County Clerk in Alfalfa

County, Oklahoma, from 1988 to 1997. In 1993, Bruce Martin replaced Kaye Jay

as County Clerk, and Kent worked under Martin from his election until her

termination in February 1997. During that time, the Clerk’s office contained only

one additional employee, Dorothy Steffey.

When Martin filed for reelection at the end of his term in 1996, Kent ran

against him. Six days after Kent announced her candidacy, Martin began to

document incidents of alleged misconduct on her part; those incidents numbered

seventy-nine after seven months.1
1

(...continued)

proper bidding procedures, performing outside business in the Clerk’s office, and

general failure to communicate cordially within the office. Kent disputes the

validity of many of the documented incidents.

2

 Between January 1993 and January 1996, Martin documented three minor

instances of misconduct involving Kent. On two of those occasions, Kent had

arrived at work three to four minutes late. The third instance concerned

procedure for obtaining bids on fuel and was documented neither in a warning to

(continued...)

-3-

Shortly before the August 1996 primary, a local newspaper reported

statements Kent made describing what she believed were Martin’s abuses of his

office, including his absence during approximately five-and-a-half months in a

single year and “double-dipping” when claiming travel reimbursements. Kent

lost in the three-way primary, and six months later, on February 28, 1997, Martin

terminated Kent’s employment. In a letter to the Oklahoma Unemployment

Security Commission, Martin listed three reasons for the termination. Although

two of those reasons concerned incidents occurring on February 20 and 27, 1997,

Martin stated in the letter that he “made up [his] mind on February 14” to release

Kent. (App. at 291.) Martin, however, testified that he decided to fire Kent in

June 1996, before Kent filed to oppose him for County Clerk, but was advised by

the district attorney to wait until “after the campaign was over.” (Id. at 167.)

The parties dispute both the initial tenor of their relationship and the extent

to which it changed as a result of the campaign. It appears from the record that

Martin may have been displeased with Kent’s performance as early as 1993,2
(...continued)

Kent nor in her personnel file. In his deposition, Martin discussed other instances

of improper conduct by Kent prior to 1996, including “gossiping” and failing to

relay phone messages, but he admitted those had not been documented. (App. at

144.) Martin also testified that Kent was “sneaky,” “rude,” and “talked behind

[his] back” the entire time they worked together (id. at 171), but that he did not

fire her because he “didn’t want to put her out of a job” (id. at 146).

3

 Kent does not appeal the grant of defendants’ summary judgment motion

on her additional federal claim of denial of due process and her pendent state

claim for breach of her employment contract.

-4-

although he claims new and more serious problems arose after the August

primary. On the other hand, Kent alleges that her bid to oust Martin changed

Martin’s attitude toward her but did not affect Kent’s attitude or performance or

the overall efficiency of the workplace. Kent also argues that the reasons Martin

gave for her termination were unrelated to any disruption that her candidacy

might have caused.

In her suit, Kent alleges that defendants violated the First Amendment by

terminating her employment because she opposed Martin for the position of Clerk

and spoke publicly about his absences and other alleged abuses. She appeals the

district court’s grant of summary judgment in defendants’ favor.3

II

We review a grant of summary judgment de novo, applying the same legal

standard used by the district court. Barker v. City of Del City, 215 F.3d 1134,

1137 (10th Cir. 2000). Summary judgment is appropriate only if the evidence
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shows “there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

“In First Amendment cases, an appellate court has an obligation to make an

independent examination of the whole record in order to make sure that the

judgment does not constitute a forbidden intrusion on the field of free

expression.” Barker, 215 F.3d at 1137 (quotation omitted). In a civil rights

action challenging an adverse employment decision allegedly made in reaction to

an employee’s speech, whether the employee’s interest in making the statement

outweighs the state’s interests as employer is treated as a question of law

requiring de novo review. See Cragg v. City of Osawatomie, 143 F.3d 1343,

1346 (10th Cir. 1998).

A

When a government employer has allegedly taken adverse action because

of an employee’s exercise of her right of free speech, we apply the balancing test

derived from Pickering v. Board of Education, 391 U.S. 563 (1968), and Connick

v. Myers, 461 U.S. 138 (1983), (the “Pickering/Connick test”). Barker, 215 F.3d

at 1138; see also Jantzen v. Hawkins, 188 F.3d 1247, 1251 (10th Cir. 1999);

Horstkoetter v. Dep’t of Pub. Safety, 159 F.3d 1265, 1271 (10th Cir. 1998). That

four-part test asks the following questions:

1. Whether the speech in question involves a matter of public

concern.
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2. If so, we must weigh the employee’s interest in the expression

against the government employer’s interest in regulating the speech

of its employees so that it can carry on an efficient and effective

workplace.

3. Employee must show the speech was a substantial factor driving

the challenged governmental action.

4. If so, can the employer show that it would have taken the same

employment action against the employee even in the absence of the

protected speech[?]

Barker, 215 F.3d at 1138–39 (quoting Jantzen, 188 F.3d at 1257 (further citation

omitted)). “The first two questions are ones of law for the court, while the latter

two questions are ones of fact for the jury.” Id. at 1139; see also Horstkoetter,

159 F.3d at 1271.

B

As the district court noted, and defendants conceded at oral argument, an

employee’s candidacy for political office “undoubtedly relates to matters of

public concern,” and the first part of the test is therefore satisfied in this case. 

Jantzen, 188 F.3d at 1257.

At issue is the district court’s resolution of the second prong of the

Pickering/Connick test in defendants’ favor. In granting summary judgment for

defendants, the court concluded that their interest in maintaining an effective

workplace outweighed Kent’s interest in her political expression. That

conclusion was based on what the court believed were defendants’ reasonable
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predictions of workplace disruption. The court relied on Jantzen, 188 F.3d at

1257, for the proposition that courts “‘will defer to a public employer’s

reasonable predictions of disruption, but those predications [sic] must be

supported by the presentation of specific evidence’” (quoting Cragg, 143 F.3d at

1347). According to Kent, the district court applied the wrong legal standard

when it accepted evidence of a “prediction of disruption” as evidence of

defendants’ interest in maintaining an efficient workplace by regulating Kent’s

speech. Kent argues that evidence of “actual disruption” is required to justify an

employee’s termination several months after the protected speech occurred. 

(Appellant’s Br. at 13.) We agree.

In Jantzen we held, in the context of a deputy sheriff’s termination after

announcing his candidacy for sheriff, that “at the time of [plaintiff] Haugland’s

termination (in contrast to [other deputies’] termination six months thereafter),

there was specific evidence to support [his employer’s] reasonable prediction” of

disruption. 188 F.3d at 1257–58. In that case, plaintiff Haugland was fired

immediately, so that predictions of disruption were the only possible evidence of

the employer’s interest in regulating the expression at the time of the firing. That

is why we drew a distinction between Haugland, who had been fired immediately,

and the fellow deputies who supported his candidacy and were fired six months
4

 We did not directly address the remaining plaintiffs’ free speech claims

because they had failed to raise the Pickering/Connick issue on appeal. Jantzen,

188 F.3d at 1256–57.

5

 Defendants’ assertion that “Martin was not required to allow the events

to unfold to the extent they did with Ms. Kent” is irrelevant to our inquiry. 

(Appellees’ Br. at 14.) The suggestion that Martin deliberately waited to fire

Kent in an attempt to accumulate several documented instances of alleged

misconduct does not relieve defendants of the burden to show actual disruption

caused by Kent’s speech. That documentation goes to the question whether

Martin would have terminated Kent irrespective of her political speech, a question

that is for the trier of fact. Cragg, 143 F.3d at 1347.

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later.4 Six months after the employees’ expression, a so-called “prediction” of

disruption would be meaningless to justify their termination, and under our case

law evidence of actual disruption would be required to outweigh the employees’

interest in their speech.

In some cases we have deferred to a public employer’s predictions of

disruption—rather than requiring evidence of actual disruption in all cases—only

because we recognize that a public employer does not “have to wait for speech

actually to disrupt core operations before taking action.” Moore v. City of

Wynnewood, 57 F.3d 924, 934 (10th Cir. 1995). In this case, because Martin’s

alleged fear of disruption did not lead him to fire Kent immediately, defendants

must show actual disruption in order to articulate an interest in regulating Kent’s

speech six months after the fact.5

The factual circumstances we confront in this case are analogous to those

in Prager v. LaFaver, 180 F.3d 1185 (10th Cir. 1999). In Prager, a whistleblower
6

 In Cragg, 143 F.3d at 1347, we stated that “[w]e will defer to a public

employer’s reasonable predictions of disruption [if] . . . supported by the

presentation of specific evidence.” However, we concluded that because “[o]ur

review of the record reveals no evidence of disruption caused by Mr. Cragg’s

political speech,” his employer had “failed to demonstrate by specific evidence”

that his speech “contributed to any disruption.” Id. Thus, as in Prager, because

the employee was fired several months after his initial exercise of speech, the fact

that the employer could not show actual disruption deprived its predictions of

disruption of any probative value.

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was terminated from the Kansas Department of Revenue several months after he

spoke out regarding abuses on the part of his employer. Id. at 1188–89. This

Court held that a showing of “‘actual disruption of services which results from

the employee[’s] speech’” is required in that situation to justify the employee’s

termination. Id. at 1191 (quoting Ramirez v. Okla. Dep’t of Mental Health, 41

F.3d 584, 594 (10th Cir. 1994) (quoting Schalk v. Gallemore, 906 F.2d 491, 496

(10th Cir. 1990))). As we noted in Jantzen, because of the time lapse, “it was

reasonable [in Prager] to look for proof of actual disruption in order to justify the

subsequent firing.” 188 F.3d at 1258 n.8.6

In Barker, another factually similar case, an administrative assistant to the

city manager was fired several months after she gave an interview regarding

accusations that the City Council had violated a state statute. 215 F.3d at

1136–37. We held the district court erred in basing summary judgment for the

defendant under the second prong of the Pickering/Connick test on the employer’s

speculative allegations of disruption rather than requiring evidence of actual
7

 Defendants cite Caruso v. DeLuca, 81 F.3d 666 (7th Cir. 1996), in

support of their argument that actual disruption need not be shown under the

second prong of the test. In Caruso, a deputy clerk who opposed the City Clerk in

an election was not reappointed because of her employer’s prediction that

workplace disruption would ensue. There, however, an impending redistribution

of duties within the clerk’s office made it less likely that harmony and efficiency

could be maintained in the wake of election-related antagonism between Caruso

and her boss. Id. at 668, 671. As the redistribution had not yet occurred,

predictions of disruption were the only evidence available. That is not the case

here.

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disruption. Id. Because the defendant had failed to produce “evidence indicating

that her speech was disruptive,” we held the plaintiff should have been allowed to

proceed with her free speech claim. Id. at 1140 & n.2. In this case, as in Barker,

it was improper to rely on a prediction of disruption stemming from the

employee’s speech when Martin’s decision not to fire Kent for six months raises a

genuine issue of material fact regarding whether disruption actually occurred.7

Because Kent was not fired until six months after her campaign for office

and public statements concerning Martin’s job performance, evidence of a

prediction of disruption is insufficient to justify summary judgment for

defendants under the second prong of the Pickering/Connick test. Under our

precedent, the district court should have required defendants to make a showing

of actual disruption in order to articulate an efficiency interest in regulating

Kent’s speech. Our cases applying the “reasonable prediction of disruption”

standard have done so in the context of a termination soon after the employee’s
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exercise of speech, when the intent of the termination was to avoid actual

disruption. See Jantzen, 188 F.3d at 1257–58; Moore, 57 F.3d at 927–28, 934. 

That legal standard is inapplicable when an employer has allowed an employee to

continue to work after the protected expression.

If there has been no actual disruption justifying termination during the six

months following an employee’s protected speech, it is nonsensical to rely ex post

facto on a “prediction” of disruption to tip the balance in favor of an employer’s

interest in an efficient workplace. We hold that the district court erred when it

granted summary judgment in favor of defendants based on their prediction of

workplace disruption.

C

The district court did not address the question whether defendants can show

actual disruption on summary judgment so as to prevail under the second prong of

the Pickering/Connick test. We therefore remand to the district court for

application of the correct legal standard.

III

The judgment of the district court is REVERSED, and the matter is

REMANDED for consideration of defendants’ summary judgment motion under

the correct legal standard.