## 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, Oklahom a, 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 Jul y 1996 and February

1997 included gossiping, failure to relay phone mes sages, failure to follow (continued...) -2- 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 employmen t as a deputy clerk was terminated six months after her unsuccessful campai gn to unseat Bruce Martin as County Clerk and the publication in a local newspap er of her statements concerning Martin’s job performance. She appeals t he district court’s grant of summary judgment for defendants Martin and the Boar d of County Commissioners. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.
I Kent was employed as Second Deputy to the County Cl erk in Alfalfa County, Oklahoma, from 1988 to 1997. In 1993, Bruc e Martin replaced Kaye Jay as County Clerk, and Kent worked under Martin from his election until her termination in February 1997. During that time, th e 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 can didacy, Martin began to document incidents of alleged misconduct on her part; those incidents numbered seventy-nine after seven months. 11 (...continued)

proper bidding procedures, performing outside busin ess 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 doc umented three minor instances of misconduct involving Kent. On two of those occasions, Kent had arrived at work three to four minutes late. The th ird instance concerned procedure for obtaining bids on fuel and was docume nted neither in a warning to (continued...) -3- Shortly before the August 1996 primary, a local new spaper reported statements Kent made describing what she believed w ere 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 trav el 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 O klahoma Unemployment Security Commission, Martin listed three reasons fo r 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 t hat he decided to fire Kent in June 1996, before Kent filed to oppose him for Coun ty Clerk, but was advised by the district attorney to wait until “after the camp aign was over.” (Id. at 167.) The parties dispute both the initial tenor of theirrelationship and the extent to which it changed as a result of the campaign. I t appears from the record that Martin may have been displeased with Kent’s perform ance 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, includin g “gossiping” and failing to relay phone messages, but he admitted those had notbeen documented. (App. at 144.) Martin also testified that Kent was “sneaky, ” “rude,” and “talked behind [his] back” the entire time they worked together (i d. 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’ sum mary judgment motion on her additional federal claim of denial of due pr ocess and her pendent state claim for breach of her employment contract. -4- although he claims new and more serious problems ar ose 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 Ken t’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 disr uption that her candidacy might have caused. In her suit, Kent alleges that defendants violated the First Amendment by terminating her employment because she opposed Mart in for the position of Clerk and spoke publicly about his absences and other all eged abuses. She appeals the district court’s grant of summary judgment in defen dants’ favor. 3
II We review a grant of summary judgment de novo, appl ying 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 appropr iate only if the evidence-5-

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 orde r 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 a llegedly made in reaction to an employee’s speech, whether the employee’s intere st 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 adve rse action because of an employee’s exercise of her right of free spee ch, 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 /Connicktest”). 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 matterof public concern.-6-

2. If so, we must weigh the employee’s interest in the expression against the government employer’s interest in regul ating the speech of its employees so that it can carry on an efficie nt 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 concede d at oral argument, an employee’s candidacy for political office “undoubte dly 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 /Connicktest in defendants’ favor. In granting summary ju dgment for defendants, the court concluded that their interestin maintaining an effective workplace outweighed Kent’s interest in her politic al expression. That conclusion was based on what the court believed wer e defendants’ reasonable-7-

predictions of workplace disruption. The court rel ied 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 pre dications [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 w rong legal standard when it accepted evidence of a “prediction of disruption” as evidence of defendants’ interest in maintaining an efficient wo rkplace by regulating Kent’s speech. Kent argues that evidence of “actual disruption ” is required to justify an employee’s termination several months after the pro tected speech occurred. (Appellant’s Br. at 13.) We agree.
In Jantzen we held, in the context of a deputy sheriff’s term ination 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 employe r’s] reasonable prediction” of disruption. 188 F.3d at 1257–58. In that case, pl aintiff Haugland was fired immediately, so that predictions of disruption were the only possible evidence of the employer’s interest in regulating the expressio n 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 months4 We did not directly address the remaining plainti ffs’ free speech claims

because they had failed to raise the Pickering /Connickissue on appeal. Jantzen , 188 F.3d at 1256

– 57.

5 Defendants’ assertion that “Martin was not requir ed 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 burde n to show actual disruption caused by Kent’s speech. That documentation goes t o the question whether Martin would have terminated Kent irrespective of h er political speech, a question that is for the trier of fact. Cragg , 143 F.3d at 1347. -8- later. 4 Six months after the employees’ expression, a so- called “prediction” of disruption would be meaningless to justify their te rmination, 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 no t “have to wait for speech actually to disrupt core operations before taking a ction.” 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 whistleblower6 In Cragg , 143 F.3d at 1347, we stated that “[w]e will deferto a public

employer’s reasonable predictions of disruption [if ] . . . supported by the presentation of specific evidence.” However, we co ncluded that because “[o]ur review of the record reveals no evidence of disrupt ion caused by Mr. Cragg’s political speech,” his employer had “failed to demo nstrate by specific evidence” that his speech “contributed to any disruption.” I d. Thus, as in Prager , because the employee was fired several months after his ini tial exercise of speech, the fact that the employer could not show actual disruption deprived its predictions of disruption of any probative value. -9- was terminated from the Kansas Department of Revenu e several months after he spoke out regarding abuses on the part of his emplo yer. 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. G allemore , 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 t o 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 gav e an interview regarding accusations that the City Council had violated a st ate statute. 215 F.3d at 1136–37. We held the district court erred in basin g summary judgment for the defendant under the second prong of the Pickering /Connicktest on the employer’s speculative allegations of disruption rather than r equiring evidence of actual7 Defendants cite Caruso v. DeLuca , 81 F.3d 666 (7th Cir. 1996), in

support of their argument that actual disruption ne ed 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 empl oyer’s prediction that workplace disruption would ensue. There, however, an impending redistribution of duties within the clerk’s office made it less li kely 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 oc curred, predictions of disruption were the only evidence av ailable. That is not the case here. -10- disruption. Id. Because the defendant had failed to produce “evid ence indicating that her speech was disruptive,” we held the plaint iff 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 disrupti on stemming from the employee’s speech when Martin’s decision not to fir e Kent for six months raises a genuine issue of material fact regarding whether di sruption actually occurred. 7
Because Kent was not fired until six months after h er campaign for office and public statements concerning Martin’s job perfo rmance, evidence of a prediction of disruption is insufficient to justify summary judgment for defendants under the second prong of the Pickering /Connicktest. Under our precedent, the district court should have required defendants to make a showing of actual disruption in order to articulate an effi ciency interest in regulating Kent’s speech. Our cases applying the “reasonable prediction of disruption” standard have done so in the context of a terminati on soon after the employee’s-11-

exercise of speech, when the intent of the terminat ion 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 employe r has allowed an employee to continue to work after the protected expression. If there has been no actual disruption justifying t ermination during the six months following an employee’s protected speech, itis nonsensical to rely ex post facto on a “prediction” of disruption to tip the ba lance in favor of an employer’s interest in an efficient workplace. We hold that t he district court erred when it granted summary judgment in favor of defendants bas ed on their prediction of workplace disruption.
C The district court did not address the question whe ther defendants can show actual disruption on summary judgment so as to prev ail under the second prong of the Pickering /Connicktest. We therefore remand to the district court f or 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.