FILED

United States Court of Appeals

Tenth Circuit

February 18, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICIA CHAVEZ-RODRIGUEZ,

Plaintiff - Appellee,

v. No. 09-2047

CITY OF SANTA FE,

Defendant,

and

MAYOR DAVID COSS, in his official and

individual capacity; COUNCILOR KAREN

HELDMEYER, in her official and individual

capacity; JOHN B. “JACK” HIATT, in his

official and individual capacity,

Defendants - Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. NO. 1:07-CV-00633-JB-DJS)

Robyn Hoffman (Stephen G. French with her on the briefs), French & Associates,

P.C., Albuquerque, New Mexico, for Defendants-Appellants.

Aimee S. Bevan (Daniel J. O’Friel and Pierre Levy with her on the brief), O’Friel

and Levy, P.C., Santa Fe, New Mexico, for Plaintiff-Appellee.

Before MURPHY, BALDOCK, and HARTZ, Circuit Judges.

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The City of Santa Fe was also named as a defendant in the complaint. The

district court dismissed all municipal liability claims against the City, and the

City is not a party to this appeal.

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MURPHY, Circuit Judge.

I. Introduction

Plaintiff Patricia Chavez-Rodriguez filed this 42 U.S.C. § 1983 action

alleging, in part, that Defendants David Coss, Karen Heldmeyer, and John Hiatt

(collectively “Defendants”) retaliated against her in violation of her First

Amendment rights while she was employed by the City of Santa Fe, New

Mexico.1

 Chavez-Rodriguez’s First Amendment claim was based on a variety of

statements she made to city, state, and federal officials, as well as a conversation

she had with Ben Lujan, Speaker of the New Mexico House of Representatives. 

After removing the case to federal district court, the Defendants moved for

judgment on the pleadings as to Chavez-Rodriguez’s First Amendment claim,

arguing none of the speech in question was constitutionally protected. The

district court granted the motion in part and denied it in part, concluding that

while most of Chavez-Rodriguez’s speech was not protected, her discussion with

Lujan was. Defendants then sought summary judgment on qualified immunity

grounds as to the remaining component of Chavez-Rodriguez’s First Amendment

claim. The district court denied this motion.

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In this interlocutory appeal, Defendants challenge the district court’s denial

of qualified immunity. This court now REVERSES and REMANDS to the

district court to enter judgment in favor of Defendants on this aspect of ChavezRodriguez’s First Amendment claim.

II. Background

Chavez-Rodriguez became the Director of the City of Santa Fe’s Division

of Senior Services (“the Division”) in 2004. The Division provides support,

including meals, transportation, and health care services, to elderly residents

living in the City and County of Santa Fe, New Mexico. The Division’s budget is

funded by a number of sources, including the City and County of Santa Fe, the

State of New Mexico, and the federal government. In addition to administering

senior services programs, Chavez-Rodriguez’s job description requires that she

“ensure[] compliance with relevant state, federal, and city laws and regulations”

and “report[] to funding sources and to the city governing body regarding

progress and concerns.” 

In 2005, the city proposed changes to the Division’s budget, including

cutting certain funding for food services and transferring federal funds from the

Division’s budget. Chavez-Rodriguez opposed these changes because of their

effect on the Division’s ability to provide services and because she believed the

proposed reallocation of funds violated federal law. She publicly voiced her

concerns to various city councilors. According to Chavez-Rodriguez, her actions

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angered two city councilors in particular: Defendants David Coss and Karen

Heldmeyer. Nonetheless, she continued to voice her concerns to individual city

councilors and at least one federal official. 

On May 25, 2005, the Division hosted a Volunteer Appreciation Banquet to

honor senior volunteers. Chavez-Rodriguez attended in her role as Director,

served as “Mistress of Ceremonies,” and gave welcoming remarks. The banquet

was held during work hours and her attendance was part of her job

responsibilities. Nine state representatives were invited to attend as well,

including Ben Lujan, one of Chavez-Rodriguez’s longtime family friends and

Speaker of the New Mexico House of Representatives. Lujan also gave a greeting

at the event. 

Chavez-Rodriguez sat at the head table with Lujan. At one point, Lujan

asked Chavez-Rodriguez how she was doing. In her deposition, she described the

conversation as follows:

And while we’re having lunch during the banquet, the Speaker

of the House asked me, out of concern, if—he said, Patricia, how are

you doing? Fine. I’ve known the Speaker for many, many years. 

We are family friends. And he asked me, is everything okay? Is

there anything that I can help with?

And I said, well, you know, Mr. Speaker, I’m really, really,

really concerned because—I’m worried that the program is in

jeopardy of being dismantled as it—you know, as it has existed for

over 25 years. I’m really, really, really worried about the funding. 

I’m worried that I’m having to reduce staff hours. I’m worried that

money has been cut from the food line item.

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The Corporation for National and Community Service “is an independent

federal agency that administers and dispenses federal grant funds to support local

programs fostering volunteer and community service activities.” United States v.

Williams, 527 F.3d 1235, 1238 (11th Cir. 2008).

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And he told me, if there’s anything, anything I can do, I would

be more than happy to do so. He said, I am very, very concerned

about these programs. He said, I was originally—I was one of the

original founders, if you will, of senior programs. Seniors are true

and dear to my heart. They are my constituents. And their wellbeing is of my utmost importance. That’s why I’m here today at this

banquet. And if I need to, Patricia, I’ll talk to the Mayor. I will talk

to Mike, who was the City Manager at the time, to see if there’s

anything that I can do.

In an affidavit, Chavez-Rodriguez further explained she

told the Speaker of the New Mexico House[,] Ben Lujan, the City

budget cuts would place the City of Santa Fe out of compliance with

Federal law, and would jeopardize the health and welfare of senior

citizens of northern New Mexico.

Chavez-Rodriguez claims her conversation with Lujan, along with her

general opposition to the budget cuts, angered Coss and Heldmeyer. Ultimately,

the Director of the Corporation for National and Community Service2

 determined

the budget transfers were a violation of the Older Americans Act, and the City

restored the funds.

In March 2006, Coss was elected Mayor of Santa Fe. Thereafter, ChavezRodriguez claims she was retaliated against for several months due to her

opposition to the budget decisions, including her discussion with Lujan. On

January 19, 2007, Assistant City Manager Jack Hiatt informed Chavez-Rodriguez

she was being removed from her position as Director of Senior Services and

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In a separate order, the district court also dismissed Chavez-Rodriguez’s

federal due process claims along with all municipal liability claims against the

(continued...)

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would be reassigned to a low-level position with a local community center. 

However, Chavez-Rodriguez was later reinstated as Director of the Division. 

Chavez-Rodriguez initially filed the instant action in New Mexico state

court against the City of Santa Fe, Coss, Heldmeyer, and Hiatt. The complaint

included four counts: (1) retaliation in violation of her First Amendment rights,

(2) violation of her federal and state right to due process, (3) assault under state

law, and (4) recovery of attorney’s fees and costs. Chavez-Rodriguez’s First

Amendment claims related not only to her conversation with Lujan, but also her

public opposition to the budget cuts and her direct contact with individual city

councilors and federal officials on the subject. 

Defendants removed the action to the United States District Court for the

District of New Mexico. Defendants then filed a motion for judgment on the

pleadings, which the district court granted in part and denied in part, determining

most of the incidents of speech at issue were not protected under the First

Amendment because they were undertaken pursuant to Chavez-Rodriguez’s

official duties. However, the district court denied the motion as to ChavezRodriguez’s claim of retaliation for her conversation with Lujan, determining

those statements were made as a private citizen and are, therefore, entitled to First

Amendment protection.3

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(...continued)

City of Santa Fe. Chavez-Rodriguez’s assault claim against Hiatt remains

pending before the district court.

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Defendants then filed a motion for summary judgment claiming entitlement

to qualified immunity. In its order, the district court reiterated its prior ruling

that Chavez-Rodriguez’s conversation with Lujan constituted protected speech. 

The court also determined it was clearly established that retaliating against a

public employee for protected speech is unconstitutional. Consequently, the

motion was denied. 

Defendants filed this appeal seeking review of the district court’s denial of

qualified immunity. Though the denial of a motion for summary judgment is not

typically an appealable final order, this court has appellate jurisdiction when the

district court denies qualified immunity. Swanson v. Town of Mountain View,

Colo., 577 F.3d 1196, 1199 (10th Cir. 2009). However, this court’s review in

such circumstances is limited to the district court’s legal conclusions. Id. 

III. Discussion

This court reviews a district court’s denial of qualified immunity de novo,

following the same standards used by the district court. Casey v. West Las Vegas

Ind. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir. 2007). When a defendant asserts

qualified immunity in a motion for summary judgment, the burden shifts to the

plaintiff who must satisfy a heavy two-part burden. Brammer-Hoelter v. Twin

Peaks Charter Acad., 492 F.3d 1192, 1202 (10th Cir. 2007) (quotation omitted). 

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The plaintiff must show the defendant’s conduct violated a constitutional right,

and the right was clearly established at the time of the defendant’s conduct. 

Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009). Though it is often helpful,

the court need not resolve the inquiry in this particular order. Id. at 818.

Here, the court opts to proceed with the constitutional inquiry first. In

Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court made clear a

governmental employer may restrict speech made pursuant to an employee’s

official duties. In light of Garcetti, the Tenth Circuit employs a five-step inquiry

for First Amendment retaliation claims. First, the court asks “whether the

employee speaks pursuant to his official duties.” Brammer-Hoelter, 492 F.3d at

1202 (quotation omitted). If an employee speaks as a citizen rather than pursuant

to his official duties, the court must determine “whether the subject of the speech

is a matter of public concern.” Id. If so, the court must decide “whether the

employee’s interest in commenting on the issue outweighs the interest of the state

as employer.” Id. at 1203 (quotation omitted). Assuming this is the case, the

employee must show his speech was a “substantial factor or a motivating factor in

a detrimental employment decision.” Id. (quotation and alteration omitted). If

the employee makes this showing, the employer must then establish it would have

taken the same action even if the speech had not occurred. Id. 

In this circuit, the first three inquiries are resolved by the court, whereas

the final two are generally determined by the trier of fact. Id.; see Hesse v. Town

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of Jackson, Wyo., 541 F.3d 1240, 1249 (10th Cir. 2008) (“The determination of

whether a public employee speaks pursuant to official duties is a matter of law.”). 

When reviewing a pretrial denial of qualified immunity, this court construes the

evidence in the light most favorable to the non-moving party to determine

whether the employee spoke pursuant to her official duties. Hesse, 541 F.3d at

1249; Brammer-Hoelter, 492 F.3d at 1204; Green v. Bd. of County Comm’rs, 472

F.3d 794, 799 (10th Cir. 2007).

The primary issue here is whether Chavez-Rodriguez’s speech at the

banquet was pursuant to her official duties. There are no bright line rules to make

this determination. Instead, the court “take[s] a practical view of all the facts and

circumstances surrounding the speech and the employment relationship.” 

Brammer-Hoelter, 492 F.3d at 1204. Additionally, this court’s precedents have

“taken a broad view of the meaning of speech that is pursuant to an employee’s

official duties.” Thomas v. City of Blanchard, 548 F.3d 1317, 1324 (10th Cir.

2008) (quotation omitted). This court has further emphasized that no one factor is

dispositive. The guiding principle is that speech is made pursuant to official

duties if it involves “the type of activities that [the employee] was paid to do.” 

Green, 472 F.3d at 801. Stated another way, “if an employee engages in speech

during the course of performing an official duty and the speech reasonably

contributes to or facilitates the employee’s performance of the official duty, the

speech is made pursuant to the employee’s official duties.” Brammer-Hoelter,

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492 F.3d at 1203. Consequently, an employee’s job description is not dispositive

and a statement may be made pursuant to one’s official duties even though it

addresses “an unusual aspect of an employee’s job that is not part of his everyday

functions.” Id. On the other hand, speech may be entitled to constitutional

protection even when it is made at work about work. Garcetti, 547 U.S. at 420-

21; Brammer-Hoelter, 492 F.3d at 1204. Accordingly, this court closely

examines the specific circumstances in each case to determine whether the speech

in question was made pursuant to an employee’s official duties.

Having considered the content of Chavez-Rodriguez’s speech, the context

in which it was made, and Chavez-Rodriguez’s job duties, the court concludes her

statements to Lujan were made pursuant to her official duties. ChavezRodriguez’s speech occurred at an event sponsored by the Division of Senior

Services. The banquet was held during work hours, and she attended in her

capacity as Director of the Division. Likewise, Lujan attended in his capacity as

Speaker of the New Mexico House of Representatives. Therefore, both

participants to the conversation were present at the banquet by virtue of their

governmental roles. 

While this alone would be insufficient to establish Chavez-Rodriguez’s

statements are not entitled to First Amendment protection, the content of the

speech strongly suggests Chavez-Rodriguez was communicating with Lujan

pursuant to her employment duties. Even though the banquet setting was

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informal, her statements put Lujan on notice that without his assistance the

Division would lose funding that would limit its ability to provide services. It

appears Lujan himself so understood Chavez-Rodriguez’s statements, as he

immediately offered to speak with various city officials to address the Division’s

funding situation. The content of the speech indicates the conversation was more

akin to a work discussion between two public officials than small talk at a party. 

By voicing her budgeting concerns to Lujan, a powerful New Mexico state

official, Chavez-Rodriguez was engaging in speech that “contribute[d] to or

facilitate[d]” her performance as Director. Brammer-Hoelter, 492 F.3d at 1203. 

Chavez-Rodriguez relies heavily on her relationship with Lujan. 

Specifically, she argues her discussion with Lujan was more like a conversation

between two family friends than an employment activity. While the personal

relationship between the employee and her audience is a factor this court

considers, the court must also be cognizant of the full context in which the speech

occurs. Indeed, if the existence of a personal relationship itself was dispositive,

no effect would be given to the employer’s “heightened interests in controlling

speech made by an employee in . . . her professional capacity.” Garcetti, 547

U.S. at 422. Here, Chavez-Rodriguez stated her concerns about her

employment—the Division’s budget cuts—while participating in a work event, for

which both she and Lujan were present due only to their respective positions. 

Even though Chavez-Rodriguez was Lujan’s friend, the court must balance their

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personal relationship with the governmental capacity in which both attended. 

Likewise, Lujan’s question, “How are you doing?” does not convert the

conversation to a private matter between friends because Chavez-Rodriguez chose

to respond by engaging in a work-related discussion. In light of the specific

circumstances surrounding the conversation, the personal relationship between the

two does not so overwhelm the work-related nature of the discussion so as to

convert the conversation to private speech. 

Chavez-Rodriguez also argues her conversation with Lujan must constitute

private speech because Lujan is not within her chain of command and she had no

duty to report directly to him. As Chavez-Rodriguez notes, the Tenth Circuit has

determined that this factor is relevant in at least two cases. In Casey v. West Las

Vegas Indep. Sch. Dist., Casey served as a school district superintendent as well

as CEO of the district’s Head Start program. 473 F.3d at 1325. When she

discovered many of the families participating in the program had misrepresented

their incomes to obtain eligibility, she informed the school board. Id. at 1326. 

When her concerns were ignored, Casey directed a subordinate to contact the

federal Head Start office and report her findings. Id. This resulted in a loss of

federal funding. Id. During the same time period, she informed the school board

she believed they were violating the New Mexico Open Meetings Act. Id. Again,

when the school board did not respond to her concerns, she contacted outside

authorities. Id. The New Mexico Attorney General’s Office investigated and

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determined the school board had violated the Act. Id. Soon afterward, Casey was

demoted. Id. at 1327. In response, she sued the school district alleging

retaliation for exercising her First Amendment rights. Id. at 1325. 

With respect to her speech regarding the Head Start program, this court

noted she went outside the chain of command. Id. at 1329. Nonetheless, the

court determined her speech was not protected because she had a duty as

executive director of the school district’s Head Start program to report

noncompliance with federal regulations. Id. at 1330-31. This court also

considered it relevant she went outside her chain of command when reporting

violations of the Open Meetings Act. This factor too was not dispositive and

simply informed the conclusion that Casey was not fulfilling any work-related

duty when she contacted the Attorney General’s Office. Id. at 1332. Indeed, the

court noted:

Of course, Ms. Casey also took her complaints about the Head Start

program to outside authorities. But, very much unlike the

administration of the Head Start program that the Board committed to

her care and pursuant to which she had independent responsibilities

to the federal government, we have no evidence in the summary

judgment record before us suggesting that the Board or any other

legal authority ever assigned Ms. Casey responsibility for the

Board’s meeting practices. 

Id. Thus, the court’s focus remained on the specific nature of the plaintiff’s job

responsibilities. That Casey reached different results on the Head Start and Open

Meetings Act claims makes it clear that going beyond the chain of command is

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merely one factor suggesting, under certain circumstances, that an employee’s

speech is not job-related. It does not, however, control the inquiry. 

Chavez-Rodriguez also points to Thomas v. City of Blanchard. There, this

court held that a city building inspector’s report to law enforcement regarding the

mayor’s falsification of a building certificate constituted protected speech. 548

F.3d at 1326. The court noted, “The fact that Mr. Thomas threatened to go

outside his usual chain of command and report on suspected criminal activity to

[law enforcement], and not merely to his supervisors . . . , leads us to believe that

he was not acting pursuant to his official duties.” Id. at 1325. The court went on,

however, to explain that reporting conduct to outside authorities “was not the type

of activity Mr. Thomas was paid to do,” and his position as building inspector

imposed no underlying legal obligation to report the wrongdoing. Id. Thus, the

court’s precedents provide that whether an employee’s speech was made outside

the chain of command merely helps inform the court as to whether the speech was

made pursuant to one’s employment. Neither Casey nor Thomas establish a per se

rule that speaking outside the chain of command is protected. 

In any case, “even if not explicitly required as part of her day-to-day job

responsibilities,” an employee’s statements are made pursuant to official duties

when they “stemmed from and were the type of activities that she was paid to

do.” Green, 472 F.3d at 800-01. Chavez-Rodriguez’s speech at the banquet can

be likened to lobbying a government official to support the Division’s needs and

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It is also noteworthy that Chavez-Rodriguez’s predecessor, Rita Maes,

stated in an affidavit that when she served as Director, it was policy to invite state

legislators to the banquet specifically so the Director would have an opportunity

to lobby for funding.

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concerns in light of the budget crisis. Even if not an explicit job requirement, the

record indicates the discussion with Lujan stemmed from Chavez-Rodriguez’s

duties as Director and were of the type she was paid to perform.4

 Moreover,

Chavez-Rodriguez’s responsibilities as Director did include communicating with

funding sources regarding the progress and performance of the Division. The

district court noted that the State of New Mexico is one of the Division’s funding

sources. While Chavez-Rodriguez’s statements to an individual legislator cannot

be likened to a formal report to the State, Lujan’s high-ranking position placed

him in a position to influence the situation in light of Chavez-Rodriguez’s

concerns. Thus, even though Chavez-Rodriguez may have been stepping outside

the chain of command when speaking with Lujan, the nature of the conversation

indicates the speech was not undertaken as a private citizen, but rather in ChavezRodriguez’s role as the Director.

Given all of the circumstances surrounding Chavez-Rodriguez’s

conversation with Lujan, the court concludes the speech in question was

undertaken pursuant to Chavez-Rodriguez’s official duties and not as a private

citizen. As a result, this speech is not entitled to First Amendment protection and

the Defendants are entitled to qualified immunity.

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IV. Conclusion

For the foregoing reasons, this court REVERSES the district court’s denial

of the Defendants’ motion for summary judgment because the Defendants are

entitled to qualified immunity. The court REMANDS this case to the district

court with instructions to enter judgment as a matter of law in the Defendants’

favor with respect to the First Amendment claim stemming from ChavezRodriguez’s conversation with Lujan at the Division’s banquet.

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