UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JASON C. CORY, Plaintiff - Appellant,

v. CITY OF BASEHOR; LLOYD MARTLEY, Basehor City Police Chief; ROBERT PIERCE, Police Lieutenant, City of Basehor Police Department, Defendants - Appellees. No. 14-3270 (D.C. No. 2:12-CV-02547-JTM) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, HOLMES and McHUGH , Circuit Judges.

________________ _________________ Mr. Cory brought this action alleging st ate and federal clai ms related to the termination of his employment as a police o fficer for the City of Basehor, Kansas. The district court granted summary judgmen t to the defendants on all of his claims and denied his motion under Fed. R. Civ. P. 59(e) to alte r or amend the judgment. On appeal, he presents a si ngle issue: whether the dist rict court properly granted

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 12, 2015
Elisabeth A. Shumaker Clerk of Court2 summary judgment to the defendants on his claim that they terminated his employment in retaliation for his exercise of his First Amendment rights. We affirm the district court’s judgment. BACKGROUND The undisputed facts are as follows. 1 Mr. Cory began his employment with the Basehor Police Department in September 2007. During his employment he reported to his superiors a number of issues involving alleged viola tions of the department’s policies that he believed affected safe ty and integrity in the department. In particular, he reported that office rs kept unloaded s hotguns in patrol vehicles; officers had placed shotguns into the trunks of their ve hicles rather than keeping them in the passenger compartmen t where they would be accessible to the officer; there were problems w ith the camera in his patrol vehicle; the holster the department provided was incorr ect for the sidearm the department had issued to him; the tires on his patrol car were bald; an of ficer had made a threat of physical violence against him on the telephone; a nd he had observed his fellow officers going home or to the office to sleep on th e job instead of remaining on patrol, making those officers unavailable to provide backup. He also al leged that he receive d conflicting direction from Lloyd Martley, the City’s police chief, and Robert Pi erce, its police lieutenant,

1 The district court deem ed admitted the facts defe ndants presented in their summary-judgment motion because Mr. Cory fa iled to dispute these facts as required by Rules 56.1(a) and (b)(1) of the District of Kansas Local Rules. Mr. Cory has not specifically challenged this ruling on appeal, and we fi nd no abuse of discretion, see Amundsen v. Jones , 533 F.3d 1192, 1197 (10th Cir. 2008) (“We review a district court’s application of its local rule s for an abuse of discretion.”).3 concerning whether he should pursue a criminal investigat ion in a case he believed involved identity theft, and that he overh eard an inappropriate conversation between Chief Martley and Lieutena nt Pierce concerning whethe r and how officers should respond to an emergency call involving a child’s asthma at tack. During his deposition testimony, Mr. Cory admitted that in reporting these incidents or perceived violations to hi s command staff, he was doing what was required of him under his Standard Operating Procedure; in making the repor ts, he was doing his job; and that reporting such viola tions was part of his job as a Basehor Police Officer.
See Aplt. App. at 52. On June 30, 2010, Mr. Cory had a m eeting in Chief Mart ley’s office with Chief Martley and Lieutenant Pierce to di scuss an allegation that Mr. Cory had improperly used city resources. A confr ontation ensued, during which Mr. Cory and Lieutenant Pierce both reached to shut the office door. Lieutenant Pierce’s hand knocked Mr. Cory’s hand out of the way, and Mr. Cory backed up to the wall. Lieutenant Pierce brought his finger up cl ose to Mr. Cory’s fa ce and thumped him twice on the chest. Mr. Cory was not hur t or offended by these actions, but he was frightened by them. The next day, Lieutena nt Pierce issued Mr. Cory a letter of reprimand, stating that he had violated a section of th e Code of Conduct requiring courteous and respectful beha vior toward superiors. On July 9, 2010, Chief Martley dr ove Mr. Cory around Basehor and they discussed all of Mr. Cory’s reports and concerns. Mr. Cory was carrying a voice recorder in his shirt pocket to record their conversation. Although he asserts that the4 recorder was in plain view, he did not tell Chief Martley that he was recording their conversation or seek his permission to do so. After realizing that Mr. Cory had recorded their conversation without his consent, Chief Mart ley suspended him indefinitely. While on suspension, Mr. Cory attempted to file a criminal complaint against Lieutenant Pierce with the Basehor Poli ce Department relative to the June 30 incident, but Lieutenant Pierce escorted him off the police department premises. Mr. Cory also filed a report with the Leavenworth County Sheriff’s Department alleging that Lieutenant Pierce had assa ulted him, but the Sheriff’s Department elected not to pursue the matter. On July 15, 2010, the City of Basehor terminated Mr. Cory’s employment. Chief Martley later explained that he ha d never caught any other officer in the department recording their private conve rsations; that Mr. Cory’s “incessant complaining about the Department policie s, his coworkers and his supervisors disrupted the efficient operation of the De partment”; and that his employment was terminated “due to his inab ility to get along with his co workers and because he lost the trust of his command staf f.” Aplt. App. at 147. DISCUSSION 1. Review Standards “We review the district court’s gr ant of summary judgment de novo.” Seifert v. Unified Gov’t of Wyandotte Cty./Kan. City , 779 F.3d 1141, 1150 (10th Cir. 2015). Summary judgment is appropriate “if the movant shows that there is no genuine5 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56( a). “Under this standard, we view the evidence and draw reasonable inferences in the light most favorable to the nonmovant.” Seifert , 779 F.3d at 1150 (internal quota tion marks omitted). 2. First Amendment Righ ts of Public Employees The Supreme Court has explained that “citizens do not surrender their First Amendment rights by acceptin g public employment,” Lane v. Franks , 134 S. Ct. 2369, 2374 (2014), but public employees do “not enjoy the same scope of First Amendment rights as a private citizen,” Rock v. Levinski , 791 F.3d 1215, 1219 (10th Cir. 2015). “Because government employers, like private employers, need a significant degree of cont rol over their employees’ words and actions, not every restriction on a public em ployee’s speech amounts to a deprivation of First Amendment rights.” Seifert , 779 F.3d at 1151 (citation, alteration, and internal quotation marks omitted). “The First Amendment protection of a public employee’s speech depends on a careful balance betwee n the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. (alteration and internal quotation marks omitted). “The familiar Garcetti/Pickering analysis governs First Amendment retaliation claims.” Nixon v. City & Cty. of Denver , 784 F.3d 1364, 1367 (10th Cir. 2015) (internal quotation marks omitted). It consists of five elements:6 (1) whether the speech was made pursuan t to an employee’s official duties; (2) whether the speech was on a matter of public concern; (3) whether the government’s interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff’s free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether th e defendant would have reached the same employment decision in the ab sence of the protected conduct. Id. (internal quotation marks omitted). “T he first three elem ents are typically questions of law (though they can turn on disputed issues of fact), while the last two are typically questions of fact.” Seifert , 779 F.3d at 1151. The issue here we mu st resolve involves the first element. In Garcetti v. Ceballos , 547 U.S. 410, 421 (2006), the Supr eme Court held that “when public employees make statements pur suant to their offi cial duties, the employees are not speaking as citizens for Fi rst Amendment purposes, a nd the Constitution does not insulate their communications from employer discipline.” The district court reasoned that when Mr. Cory made hi s complaints, “it is undisputed that [he] was not speaking as a citizen but as a City of Basehor empl oyee, and his speech was not entitled to First Amendment protection.” Aplt. App. at 330. It further determ ined that the lack of a constitutional violation meant that the individual defendant s were entitled to qualified immunity concerning this claim. Id. at 336. 3. Mr. Cory’s Arguments In his summary-judgment response, Mr . Cory identified his protected speech as his complaints about viola tions of “serious safety polic ies and/or practices within the department that not only affected employees, but had th reatened the safety of the public at large.” Aplt. App. at 185. He a sserted that he had been fired for reporting7 “several incidents of serious health and safety violati ons perpetrated by the Basehor City Police Department.” Id. at 194. But he failed to dispute the defendants’ contention that he was doing his j ob when he made these reports. 2 He now argues that the district court should not have re lied upon uncontroverted facts to reach its

2 In his Rule 59(e) motion, Mr. Cory belatedly attempted to dispute the statement of facts contained in the defe ndants’ summary-judg ment motion and to present additional evidence in support of his claims, including evidence that purportedly showed that the reports he made were not part of his job duties. He also modified his assertions con cerning his protected speech. He stated that the “most significant report” he made did not involve his reporting of departmental health and safety violations, but was “t he report made against Lieute nant Pierce for his physical assault against [Mr. Cory].” See Aplt. App. at 352. He argued that he made this report as a private citizen, and that it was not part of his job duties. Id. at 352-53. “The purpose of a Rule 59( e) motion is to correct mani fest errors of law or to present newly discovered evidence.” Monge v. RG Petro–M achinery (Group) Co. Ltd. , 701 F.3d 598, 611 (10th Cir. 2012) (b rackets and internal quotation marks omitted). “Grounds for gr anting a Rule 59(e) motion in clude (1) an intervening change in the controlling law, (2) new ev idence previously unava ilable, and (3) the need to correct clear error or prevent ma nifest injustice.” Id. (internal quotation marks omitted). “To suppor t a Rule 59(e) motion with additional evidence . . . the moving party must show (1) that the evid ence is newly discovered, or (2) if the evidence was availabl e at the time summary judgmen t was granted, that counsel made a diligent yet unsuccessful a ttempt to discover the evidence.” Id. (internal quotation marks omitted). The district court denied Mr. Cory’s Rule 59(e) motion, reasoning that the additional evidence he presented was not ne wly discovered, and that he failed to show clear error or manifest injustice in the order gran ting summary judgment. “We review the denial of a Rule 59(e) motion to alter or amend a judgment for abuse of discretion.” Id. at 610 (citation and internal quotati on marks omitted). Mr. Cory has made no effort in his appellate briefing to show that the district court abused its discretion in denying his Rule 59(e) motion, or that he satisfied the Rule 59(e) standards. Accordingly, we affirm the denial of his motion.8 conclusion, because the issue of whether his speech was made pursu ant to his official duties is one of law, not of fact. We find this argumen t unpersuasive. We have recognized that the “official duties” question, although involving an issue of law, can turn on the resolution of factual issues. See Seifert , 779 F.3d at 1151. That is the case here. As noted, Mr. Cory admitted during his deposition that he made the reports in question as part of his official job du ties. He failed to dispute that fact in his response to the defenda nts’ summary-judgment motion. In his opening brief in this court, he makes c onclusory assertions that some of the statements in question were made outside of his ordinary duties as a police officer.
See Aplt. Opening Br. at 11-12. In light of the defendants’ summary-judgment showing, however, such assertions are insu fficient to demonstrat e the existence of a genuine issue of material fact or to show that the defendants were not entitled to judgment as a matter of law. Mr. Cory also argues that the district court failed to pr operly consider the Supreme Court’s refinement of Garcetti ’s “official duties” rule articulated in Lane and applied in Seifert . In Lane , the Supreme Court held that the First Amendment “protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the c ourse of his ordinary job responsibilities.” Lane , 134 S. Ct. at 2374-75. This was true “even when the te stimony relates to . . . public employment or concerns information lear ned during that employment,” id. at 2378, because under
Garcetti , “the mere fact that a citizen’s sp eech concerns information acquired by virtue of his public employment does not transform that speech into employee—9 rather than citizen—speech,” id. at 2379. Rather, the issue is “whether the speech at issue is itself with in the scope of an employee’s duties, not whether it merely concerns those duties.” Id. ; see also Seifert , 779 F.3d at 1152 (holding that reserve sheriff’s deputy’s “testimony [in civil right s action] was protec ted speech,” because “[i]t concerned his work but was not part of it.”).
Lane and Seifert do not offer Mr. Cory any help, however. The undisputed summary-judgment evidence in this case wa s that Mr. Cory’s reports did not merely “concern” his duties, but we re made “within the scope” of his duties as a police officer. See Aplt. App. at 52. Moreover, he presen ts no facts of record sufficient to create a genuine issue concer ning his assertion that his re ports were made “outside the course of his ordinary job responsibilities,” Lane , 134 S. Ct. at 2374-75 (emphasis added). The distri ct court properly granted su mmary judgment in favor of the defendants on his First Amendment retaliation claim. CONCLUSION The district court’s judgment is affirmed.

Entered for the Court

Jerome A. Holmes Circuit Judge