Brown v. City of Tulsa

124 F.4th 1251

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 7, 2025
• Docket: 23-5133
• Status: Published

Opinion

Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS January 7, 2025 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

WAYNE BROWN,

Plaintiff - Appellant,

v. No. 23-5133

CITY OF TULSA; CHARLES W. JORDAN, individually and in his official capacity as Chief of Police, Tulsa Police Department,

Defendants - Appellees. _________________________________

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:19-CV-00538-WPJ-CDL) _________________________________

Robert Joseph Muise (Scott Wood, Wood, Puhl & Wood, PLLC, Tulsa, Oklahoma, with him on the briefs) American Freedom Law Center, Ann Arbor, Michigan, for Plaintiff-Appellants.

R. Lawson Vaughn, III, Senior Assistant City Attorney (Kristina L. Gray, Litigation Division Manager, with him on the briefs) City of Tulsa, Tulsa, Oklahoma, for Defendants-Appellees. _________________________________

Before CARSON, ROSSMAN, and FEDERICO, Circuit Judges. _________________________________

FEDERICO, Circuit Judge. _________________________________ Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 2

This appeal requires us to consider a police officer’s First Amendment

rights as they relate to social media posts that may violate department policy.

Plaintiff Wayne Brown (Brown) was terminated as a Tulsa police officer after

a private citizen brought several of his old Facebook posts to the attention of

the City of Tulsa and the Tulsa Police Department. As a result of his

termination, he brought two claims under 42 U.S.C. § 1983 and a wrongful

discharge claim under Oklahoma law against the City of Tulsa and Tulsa

Police Department Chief Charles W. Jordan (Chief Jordan).

On appeal, Brown challenges the district court’s dismissal of his federal

claims pursuant to Federal Rule of Civil Procedure (Rule) 12(b)(6) and its

decision to then decline supplemental jurisdiction over his state law claim.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in

part, and remand for further proceedings consistent with this opinion.

I

A1

In January 2019, Brown became an at-will employee with the Tulsa

Police Department. After graduating from the police academy in August 2019,

Brown began field training.

1 In reviewing a Rule 12(b)(6) dismissal, we accept the truth of all well-

pleaded factual allegations in Brown’s operative complaint and draw all reasonable inferences in Brown’s favor. Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021). 2 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 3

Prior to and during his employment, Brown maintained a Facebook page

under his nickname “Duke” Brown. Sometime on or before September 4, 2019,

Tulsa activist Marq Lewis (Lewis) posted on Facebook2 commentary

concerning Brown’s social media posts.3 The body of Lewis’s original post (prior

to any updates) stated:

Meet the newest Tulsa Police Officer Duke Brown.

2 We note three points regarding Lewis’s Facebook post:

First, the City of Tulsa attached a screenshot of Lewis’s Facebook post to their motion to dismiss. We may consider this screenshot because Brown’s operative complaint quotes from and references it and Brown does not object to its authenticity. GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (“[I]f a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff’s claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.”).

Second, both the screenshot and the operative complaint indicate that the post was updated on September 4, 2019, but neither confirms the original date it was posted. See Aple. App. at 34; Aplt. App. at 14 ¶ 36 (“On September 4, 2019, at 8:44 a.m., Marq Lewis posted on his Facebook page the following: ‘Update: Received confirmation from 2 sources that Duke Brown has been terminated.’”).

Third, the operative complaint does not clarify where Lewis made the post to – whether on his personal Facebook page or in a Facebook group – nor does it indicate the post’s privacy settings, such as whether it was visible only to Lewis’s Facebook friends or to the public on Facebook.

3 The complaint does not explicitly specify whether Brown’s Facebook

page was set to public or private, the privacy settings on the posts at the time they were made and when they were screenshot, or how Lewis accessed them. 3 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 4

Officer Brown just recently graduated from the academy and was greeted with a warm reception from the Chief of Police Chuck Jordan and Mayor Bynum.

It’s been brought to my attention that officer Brown has some very offensive social media images.

Image of The president riding a lion with the Confederate flag.

Image of the a fist, acknowledging a fight against the religious faith, Islam.

Image of the punisher with crosshairs. This image originated from the American sniper Chris Kyle who was very controversial with killing Iraqi citizens along with killing American citizens during Katrina.

The Oath of Office that every police officer takes says that they will protect all citizens. Having these social media posts is a clear indication that Officer Brown has biases towards people who practice Islam and Black Americans.

These images are a clear violation of the Tulsa Police Department’s social media policy.

I’m very curious why the recruiter did not verify this officer’s social media platforms before offering this person a job that gives a license to kill.

Do better Tulsa Police Department!

Aple. App. at 34 (references to [sic] not included). Lewis’s original post included

three screenshots from Brown’s Facebook page.

One screenshot depicted Brown posting an image of “yet-to-be-president

Donald Trump,” on or about August 6, 2015:

4 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 5

Aplt. App. at 20 ¶ 72(A).

Another screenshot depicted Brown posting an image “making the point

that Americans (particularly Christians, such as [Brown], who will not convert

or submit to Islam as a matter of religious conviction) will not surrender or

submit to sharia-supremacism,” on or about November 15, 2015:

5 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 6

Id. at 21 ¶ 72(B).

And a third screenshot depicted Brown posting an image “created by the

famous American sniper and decorated war hero Chris Kyle superimposed over

the American flag with a thin blue line—[an] image . . . associated with the

‘blue lives matter’ movement,” on or about March 24, 2016:

Id. at 21 ¶ 72(C).

At some point, Lewis’s post was updated to include additional

screenshots of Brown’s prior Facebook posts. See Aple. App. at 34 (“Update: I’m

adding more images. Thanks citizens for finding these.”).

One additional screenshot depicted Brown reposting an image originally

posted by “The Inmates of the Asylum,” on or about March 19, 2013:

6 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 7

Aplt. App. at 23–24 ¶ 73(E).

Another screenshot depicted Brown reposting an image of “Michelle

Obama with a message urging her to take her ‘South Chicago Values’ and

‘Socialist Family’ back to Chicago,” originally posted by “Prepare to Take

America Back,” and reposted by Brown on or about March 22, 2013:

7 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 8

Aplt. App. at 22 ¶ 73(A). Additionally, one screenshot depicted Brown reposting

an image originally posted by “Stop Islamization of the world,” on or about

March 25, 2013:

8 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 9

Id. at 23 ¶ 73(C).

Another screenshot depicted Brown reposting an image originally posted

by “Police Officers,” on or about April 26, 2013:

Id. at 22 ¶ 73(B).

Finally, one screenshot depicted Brown posting the following image in

or about September 2014:

9 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 10

Id. at 23 ¶ 73(D).

Lewis’s post also included a screenshot depicting Brown updating his

profile picture to an image of himself and a fellow officer, both in uniform, on

or about August 15, 2019:

Id. at 24 ¶ 73(F). This updated profile picture was the only post of those shared

by Lewis that Brown made to Facebook during his employment with the Tulsa

Police Department.

On the morning of September 4, 2019, at approximately 11:11 a.m. and

before Brown arrived at work, a friend forwarded him a copy of Lewis’s

Facebook post. Prior to receiving this message, Brown had no indication that

his Facebook posts were a potential issue for his job as a police officer.

At approximately 2:05 p.m. that same day, Brown was told by Captain

Thom Bell to come into the meeting room where Captain Luke Sherman and

10 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 11

Internal Affairs officers were waiting. Brown entered the room, the door was

closed behind him, and he was instructed to remove his gun belt. Brown

complied and handed his gun belt to the Internal Affairs officer, who then laid

it on the table. Brown was told to sit down, which he did. He was then handed

an Interoffice Correspondence written from Chief Jordan dated September 4,

2019, with the subject line, “Personnel Order #19-257 Termination,” and was

instructed to read it. Id. at 15 ⁋ 43. The correspondence stated that Brown’s

employment was “hereby terminated effective immediately,” due to the Tulsa

Police Department becoming “aware of social media postings made by [Brown]

that violate Department Rules & Regulations and Policies and Procedures.”4

Id. at 15 ⁋⁋ 43–44.

One of the policies cited in the Interoffice Correspondence was “Policy

and Procedure 31-324 (Social Media and Networking) Procedures C.6.,” which

provides:

Department personnel should be mindful that their speech, when using social media, is public and becomes part of the worldwide electronic domain. Therefore, adherence to the department’s code of conduct is required in the personal use of social media. In

4 The Interoffice Correspondence does not specifically identify which of

Brown’s social media posts led to his termination. See Aplt. App. at 34. Brown alleges that the August 6, 2015 post, November 15, 2015 post, and March 24, 2016 post “likely prompted [his] termination . . . .” Id. at 20 ⁋ 72. However, his operative complaint later alleges that during an unemployment benefits appeal hearing, Deputy Chief Eric Dalgliesh of the Tulsa Police Department testified that Brown was terminated only for the August 6, 2015 and the March 24, 2016 posts. 11 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 12

particular, department personnel are prohibited from posting speech containing obscene or sexually explicit language, images, acts, and statements or other forms of speech that ridicule, malign, disparage, or otherwise express bias against any race, religion, or protected class of individuals.

Id. at 15 ⁋ 45.

During the meeting, and consistent with the Interoffice Correspondence,

Brown was advised that his employment was being terminated because he had

violated the Tulsa Police Department’s social media policy. Specifically, he was

“informed that he posted offending social media posts on his private Facebook

page, and that these posts were sent by a complaining citizen to either the

mayor’s office or [Chief] Jordan’s office . . . .” Id. at 16 ⁋ 49.

After receiving his termination notice, Brown inquired if he would be

given an opportunity to present “his side of it,” to which Captain Bell and an

Internal Affairs officer responded that “they were not there to listen to

anything [Brown] had to say and that he needed to sign the termination paper.”

Id. at 16 ⁋ 50. Brown protested, asserting that “this was not right” and that “he

had done nothing wrong.” Id. at 16 ⁋ 51. He pointed out that the posts were

three to six years old and labeled the termination as complete “BS.” Id. at 17

⁋ 54. Brown then asked if he could talk to Chief Jordan about this termination

decision. The officers did not provide a definitive answer but mentioned they

would pass his message along to Chief Jordan.

12 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 13

To avoid further embarrassment, Brown requested that the officers not

make him do a “shame walk” in front of everyone in the office as he left, to

which they agreed. Id. at 17 ⁋ 57. Reluctantly, Brown then signed the

Interoffice Correspondence. His patrol car was cleaned out and he was

subsequently escorted from the meeting room out through a back door. At this

point, Brown felt “totally dejected, embarrassed, and humiliated.” Id. at 18

⁋ 61.

The next day, September 5, 2019, at around 1:00 p.m., Brown came back

to the Tulsa Police Department to return the remaining department property

in his possession and to retrieve personal headphones he had left. Upon giving

Brown his personal headphones, Captain Bell told Brown something to the

effect of, “On a personal note I didn’t want to do this . . . and I think its [sic]

BS, but understand I have a job to do as well and best of luck to you in the

future . . . .” Id. at 19 ⁋ 64. Captain Bell also mentioned to Brown that “he was

a good officer” and that the Tulsa Police Department “needed people like him.”

Id. Brown was never given an opportunity to discuss the matter with Chief

Jordan.

Shortly after Brown’s termination, “news reports began circulating and

social media erupted, condemning [Brown] and vilifying him as a racist and an

Islamophobe.” Id. at 19 ⁋ 66. In response to a media inquiry, Sergeant Shane

Tuell, the Tulsa Police Department’s Public Information Officer, wrote: “Early

13 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 14

yesterday morning the police department was notified of some questionable

social media posts by one of our officers. The Chief . . . immediately ordered

internal affairs to open an investigation, and within one hour and 15 minutes

of receiving the complaint the officer was terminated.” Id. at 19–20 ⁋ 68. The

City of Tulsa and Chief Jordan confirmed with the media that Brown was

terminated because they believed that Brown had violated the Tulsa Police

Department social media policy prohibiting personnel “from posting forms of

speech that express bias against any race, religion, or protected class of

individuals.” Id. at 20 ⁋ 69.

Brown alleges that being fired has caused him public humiliation,

embarrassment, anger, and stress. He further alleges that this termination

has undermined the trust and confidence that Tulsa Police Department officers

have in their leadership, particularly in Chief Jordan, whom they believe “will

‘throw them under the bus’ to promote political correctness and to appease

political activists . . . .” Id. at 26 ⁋ 86.

B

On October 9, 2019, Brown filed a lawsuit in the United States District

Court for the Northern District of Oklahoma. Brown filed his operative

complaint on December 27, 2019, against the City of Tulsa and Chief Jordan,

individually and in his official capacity as Chief of Police for the Tulsa Police

Department. Therein, Brown brought three claims against both Defendants:

14 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 15

 Count One alleged a claim under 42 U.S.C. § 1983, asserting that Defendants violated his First Amendment free speech rights by terminating his employment based on the content and viewpoint of his speech made as a private citizen speaking on matters of public concern, and by enforcing a social media policy that, both facially and as applied, punished him for expressing his political and religious views;

 Count Two alleged a claim under 42 U.S.C. § 1983, asserting that Defendants violated the Equal Protection Clause of the Fourteenth Amendment by selectively terminating his employment based on the content and viewpoint of his political and religious beliefs, and by arbitrarily enforcing policies to discriminate against him to appease those opposed to his views; and

 Count Three alleged a wrongful discharge claim under Oklahoma law, also known as a Burk claim, asserting that Brown, an at-will employee, was unlawfully terminated in violation of Oklahoma public policy, as articulated in the Oklahoma Constitution, the First Amendment, and the City’s policy prohibiting suspension, removal, or demotion based on religious or political beliefs.

With respect to remedies, Brown requested declaratory and injunctive relief,

as well as actual and nominal monetary damages.

On February 3, 2020, the City of Tulsa and Chief Jordan each separately

filed a motion to dismiss pursuant to Rule 12(b)(6). The City of Tulsa in its

motion argued:

(1) Brown’s First Amendment claim failed as a matter of law because the City’s interest as an employer outweighed Brown’s free speech interest;

(2) Brown failed to allege a cognizable Equal Protection claim; and

(3) Brown’s Burk claim should be dismissed.

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And Chief Jordan in his motion argued:

(1) the claims against him in his official capacity are effectively claims against the City of Tulsa and should be dismissed as duplicative;

(2) both 42 U.S.C. § 1983 claims against him in his individual capacity should be dismissed because he is entitled to qualified immunity; and

On November 21, 2023, the district court issued one order disposing of

both motions to dismiss. It dismissed the claims against Chief Jordan in his

official capacity as duplicative of the claims against the City of Tulsa. The

district court then dismissed Brown’s First Amendment claim against the City

of Tulsa for failure to state a claim, concluding that the City’s interest in

maintaining a police force that instills public confidence and discourages

partisanship outweighed his free speech rights, and dismissed the same claim

against Chief Jordan in his individual capacity, holding that he is entitled to

qualified immunity. The court likewise dismissed Brown’s Equal Protection

claim against both the City and Chief Jordan for failure to state a claim,

determining that Brown alleged a “class-of-one” theory of Equal Protection

foreclosed by Supreme Court precedent. Finally, after dismissing the federal

claims, the district court declined to exercise supplemental jurisdiction over

Brown’s state law claim.

16 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 17

On November 21, 2023, final judgment was entered, and, on December 9,

2023, Brown filed a timely notice of appeal. On appeal, Brown challenges four

rulings by the district court:

(1) the dismissal of his First Amendment claim against the City of Tulsa for failure to state a claim under Rule 12(b)(6),

(2) the conclusion that Chief Jordan is entitled to qualified immunity on his First Amendment claim,

(3) the dismissal of his Fourteenth Amendment Equal Protection claim against both the City of Tulsa and Chief Jordan for failure to state a claim under Rule 12(b)(6), and

(4) the decision to decline supplemental jurisdiction over his Burk claim.

C

Before addressing the merits, we first clarify which 42 U.S.C. § 1983

theories of liability are before us on appeal. Brown sued the City of Tulsa

and Chief Jordan, in both his individual capacity and official capacity as

Chief of Police for the Tulsa Police Department, seeking declaratory and

injunctive relief, as well as monetary damages from both defendants. The

district court correctly dismissed the claims against Chief Jordan in his

official capacity as duplicative of the claims against the City of Tulsa.

Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit

is, in all respects other than name, to be treated as a suit against the entity.

It is not a suit against the official personally, for the real party in interest

17 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 18

is the entity.”). Also, Brown’s claims against Chief Jordan in his individual

capacity for declaratory and injunctive relief are non-cognizable and were

properly dismissed as well. Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1214

(10th Cir. 2022) (“Under § 1983, a plaintiff cannot sue an official in their

individual capacity for injunctive or declaratory relief.”).

This leaves the following 42 U.S.C. § 1983 theories of liability for our

review: two § 1983 claims (for violations of the First and Fourteenth

Amendments) against the City of Tulsa seeking declaratory relief,

injunctive relief, and monetary damages, see Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 690 (1978) (“Local governing bodies . . . can be sued directly

under § 1983 for monetary, declaratory, or injunctive relief . . . .”), and two

§ 1983 claims (for violations of the First and Fourteenth Amendments)

against Chief Jordan in his individual capacity for monetary damages, for

which he may assert a defense of qualified immunity.

II

We next outline the legal standards applicable to a Rule 12(b)(6) motion

to dismiss, a § 1983 municipal liability claim, and an individual-capacity § 1983

claim.

A

Our review of a district court’s ruling on a motion to dismiss under

Rule 12(b)(6) is de novo. Johnson v. Smith, 104 F.4th 153, 167 (10th Cir. 2024).

18 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 19

Pursuant to Rule 12(b)(6), a party may move for dismissal if the complaint fails

“to state a claim upon which relief can be granted . . . .” Fed. R. Civ. P. 12(b)(6).

To survive a Rule 12(b)(6) motion, the complaint “must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).

This pleading standard does not impose a probability requirement but

demands “more than a sheer possibility that a defendant has acted

unlawfully.” Id. Mere “labels and conclusions” or “a formulaic recitation of the

elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555.

Although the court must accept the truth of all properly alleged facts and draw

all reasonable inferences in the plaintiff’s favor, the plaintiff still “must nudge

the claim across the line from conceivable or speculative to plausible.” Brooks

v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021).

Importantly, in assessing whether a plaintiff has stated a claim for relief,

a court must restrict its review to only the “allegations within the four corners

of the complaint,” and cannot consider other pleadings or external allegations.

Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1286 n.1 (10th Cir. 2019)

(quoting Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994)). Exceptions

to this rule are limited to: (1) documents attached to the complaint as exhibits,

(2) documents referenced in the complaint that are central to the plaintiff’s

19 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 20

claims, provided their authenticity is undisputed, and (3) matters subject to

judicial notice. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010).

As we have emphasized, “[g]ranting [a] motion to dismiss is a harsh

remedy which must be cautiously studied, not only to effectuate the spirit of

the liberal rules of pleading but also to protect the interests of justice.” Clinton

v. Sec. Benefit Life Ins. Co., 63 F.4th 1264, 1276 (10th Cir. 2023) (quoting Dias

v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)) (second

alteration in original). We impose a “low bar for surviving a motion to dismiss,”

Quintana v. Santa Fe Cnty. Bd. of Comm’rs, 973 F.3d 1022, 1034 (10th Cir.

2020), and “a well-pleaded complaint may proceed even if it strikes a savvy

judge that actual proof of those facts is improbable, and that a recovery is very

remote and unlikely,” Id. (quoting Dias, 567 F.3d at 1178).

A plaintiff may bring a 42 U.S.C. § 1983 suit for alleged constitutional

violations that arise from the policies or practices of a municipal police

department. Typically, if a plaintiff alleges wrongdoing on the part of a

municipal police department, the plaintiff must name as a defendant the

county, city, or other form of local government that oversees the police

department, rather than the police department itself. See, e.g., Martinez v.

Winner, 771 F.2d 424, 444 (10th Cir. 1985) (dismissing the “City of Denver

Police Department” as a defendant because it “is not a separate suable entity”

20 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 21

from the City of Denver). This is because municipal departments, such as police

departments, are generally not considered separate legal entities from the local

government they serve. Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313

(5th Cir. 1991) (“In order for a plaintiff to sue a city department, it must ‘enjoy

a separate legal existence.’” (quoting Mayes v. Elrod, 470 F. Supp. 1188, 1192

(N.D. Ill. 1979))). That is, “unless the true political entity has taken explicit

steps to grant the servient agency with jural authority, the agency cannot

engage in any litigation except in concert with the government itself.” Id.

“Local governing bodies” overseeing a municipal department “can be

sued directly under § 1983” for declaratory and injunctive relief, as well as

damages, where “the action that is alleged to be unconstitutional implements

or executes” a policy or custom attributable to the municipality. Monell,

436 U.S. at 690–91. A policy can include “a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by that body’s

officers.” Id. at 690. However, a formal policy need not originate from the local

government itself; it can be issued by a municipal department or its officials.5

Id. at 694 (holding that a local government is liable “when execution of a

government’s policy or custom, whether made by its lawmakers or by those

5 We clarify this point because the district court stated that the Tulsa

Police Department’s social media policy “may or may not be a City policy.” Aple. App. at 78. 21 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 22

whose edicts or acts may fairly be said to represent official policy, inflicts the

injury that the government as an entity is responsible under” (emphasis

added)).

Monell demonstrates how this works in practice. Id. at 660–61. There,

the plaintiffs challenged formal policies of the Department of Social Services

and the Board of Education of the city of New York, which at the time required

all pregnant employees to take an unpaid leave of absence without regard to

medical necessity. Id. Those policies were issued by the city’s departments, not

literally by the city itself, yet the city was still liable for them. Id.

A plaintiff may also bring suit under 42 U.S.C. § 1983 against an

individual police officer in their personal capacity, seeking monetary damages

for alleged constitutional violations. In defending against such a claim, “an

official [sued in their individual capacity] may plead an affirmative defense of

qualified immunity.” Maresca v. Bernalillo Cty., 804 F.3d 1301, 1307 (10th Cir.

2015). “The doctrine of qualified immunity shields officials from civil liability

so long as their conduct ‘does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’”

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S.

223, 231 (2009)).

22 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 23

When a defendant asserts qualified immunity at the motion to dismiss

phase, the plaintiff “must allege facts sufficient to show (assuming they are

true) that the [1] defendant[] plausibly violated their constitutional rights, and

that [2] those rights were clearly established at the time.” Robbins v.

Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008). Courts may address these

two inquiries in any order. Pearson, 555 U.S. at 236. But if the plaintiff fails to

satisfy either prong, a court must grant qualified immunity. Medina v. Cram,

252 F.3d 1124, 1128 (10th Cir. 2001).

A right is clearly established when, at the time of the challenged conduct,

“the right’s contours were sufficiently definite that any reasonable official in

the defendant’s shoes would have understood that [they] [were] violating it.”

Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014). A plaintiff can demonstrate

that a right is clearly established in three ways. First, a “materially similar”

published case from the Supreme Court or Tenth Circuit may give an official

fair notice that their specific conduct would violate a constitutional right.

Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017). Second, the

plaintiff can point to the “clearly established weight of authority from other

courts . . . .” Ullery v. Bradley, 949 F.3d 1282, 1291 (10th Cir. 2020) (quoting

Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012)). In other words, even if there

is no Supreme Court or Tenth Circuit “case directly on point,” a “consensus of

cases of persuasive authority” may provide fair warning of unlawful conduct.

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Ashcroft v. al–Kidd, 563 U.S. 731, 741–42 (2011) (quoting Wilson v. Layne,

526 U.S. 603, 617 (1999)). Finally, there can be the rare case or “extreme

circumstance[]” where the conduct in question has not previously been held

unlawful, but a government official may still have notice that their conduct

violates a constitutional right because it is so apparent as to apply with obvious

clarity. Frasier v. Evans, 992 F.3d 1003, 1015 (10th Cir. 2021) (quoting Taylor

v. Riojas, 592 U.S. 7, 8 (2020) (per curiam)).

III

With those legal standards in mind, we now turn to the merits of this

appeal. First, we assess whether the district court erred in dismissing Brown’s

First Amendment free speech claim under Rule 12(b)(6). Next, we consider

whether the district court erred in dismissing Brown’s Fourteenth Amendment

Equal Protection claim under Rule 12(b)(6). Finally, we evaluate whether the

district court erred in declining to exercise supplemental jurisdiction over his

state law claim.

Brown’s First Amendment free speech retaliation claim is made in the

public employment context. The basis of his claim is that “Defendants

terminated [his] employment with the [Tulsa Police Department] based on the

content and viewpoint of [his] speech while [he] was [speaking as] a private

citizen commenting on matters of public concern.” Aplt. App. at 28. According

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to Brown, “Defendants’ [s]ocial [m]edia [p]olicy, facially and as applied to

punish [him] for his private speech, violates the Free Speech Clause of the First

Amendment.” Id. Brown argues that the district court erred in dismissing his

First Amendment claim against the City of Tulsa for failure to state a claim

under Rule 12(b)(6) because it concluded that the City’s interest in maintaining

a police force that instills public confidence and discourages partisanship in

law enforcement outweighed his free speech rights, and in ruling that Chief

Jordan in his individual capacity was shielded by qualified immunity. We

agree.

The First Amendment to the United States Constitution provides that

“Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to assemble, and to petition the

Government for a redress of grievances.” U.S. Const. amend. I. The First

Amendment applies to state or local government employers, such as the City

of Tulsa, vis-à-vis the Fourteenth Amendment. Gitlow v. New York, 268 U.S.

652, 666 (1925) (incorporating the First Amendment against the states).

Public employees do not “relinquish First Amendment rights to comment

on matters of public interest by virtue of government employment.” Connick v.

Myers, 461 U.S. 138, 140 (1983). To the contrary, the Supreme Court has long

25 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 26

recognized that “public employees are often the members of the community

who are likely to have informed opinions as to the operations of their public

employers, operations which are of substantial concern to the public.” City of

San Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam). “Were they not able to

speak on these matters, the community would be deprived of informed opinions

on important public issues.” Id. As such, we do not take lightly “[o]ur

responsibility . . . to ensure that citizens are not deprived of fundamental rights

by virtue of working for the government . . . .” Connick, 461 U.S. at 147.

At the same time, there is the “common sense realization that

government offices could not function if every employment decision became a

constitutional matter.” Id. at 143. “Government employers, like private

employers, need a significant degree of control over their employees’ words and

actions; without it, there would be little chance for the efficient provision of

public services.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). “When

[government employees] speak out, they can express views that contravene

governmental policies or impair the proper performance of governmental

functions.” Id. at 419.

Thus, in juggling these competing interests, courts are tasked with a

delicate balancing act: “the First Amendment protection of a public employee’s

speech depends on a careful balance ‘between the interests of the [employee],

as a citizen, in commenting upon matters of public concern and the interest of

26 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 27

the State, as an employer, in promoting the efficiency of the public services it

performs through its employees.’” Lane v. Franks, 573 U.S. 228, 231 (2014)

(quoting Pickering v. Bd. of Ed., 391 U.S. 563, 568 (1968)) (alteration in

original).

To prevail on a First Amendment retaliation claim in the public

employment context, the plaintiff must establish the following elements:

(1) their speech was not made pursuant to their official duties, Garcetti, 547 U.S. at 421;

(2) their speech was on a matter of public concern, Connick, 461 U.S. at 146;

(3) the government’s interests as the plaintiff’s employer in promoting the efficiency of the public services it provides do not outweigh the plaintiff’s free speech interests, Pickering, 391 U.S. at 568;

(4) the plaintiff’s speech was a substantial or motivating factor in the adverse employment action taken against them, Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); and

(5) the government would not have reached the same employment decision absent the plaintiff’s speech, id.

The first three elements “are ordinarily matters of law for a court to

decide, and the final two [elements] are ordinarily questions of fact.” Singh v.

Cordle, 936 F.3d 1022, 1034 (10th Cir. 2019). Only the third element is

disputed and at issue in this appeal.

27 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 28

The third element, also known as Pickering balancing, requires the court

to balance the employee’s right to free speech against the government’s

interests as an employer. Pickering, 391 U.S. at 568. This test applies even

when the employee engages in “‘speech’ which is off the job and unrelated to

any internal functioning of the department.” Flanagan v. Munger, 890 F.2d

1557, 1562 (10th Cir. 1989). “Arguably, ‘the only public employer interest that

can outweigh a public employee’s recognized speech rights is the interest in

avoiding direct disruption, by the speech itself, of the public employer’s

internal operations and employment relationships.’” Flanagan, 890 F.2d at

1566 (10th Cir. 1989) (quoting Berger v. Battaglia, 779 F.2d 992, 998 (4th Cir.

1985)); Fields v. City of Tulsa, 753 F.3d 1000, 1014–15 (10th Cir. 2014).

When the adverse employment action occurs “long after” the plaintiff’s

speech occurred, the government must demonstrate “actual disruption . . . .”6

Bailey v. Indep. Sch. Dist. No. 69, 896 F.3d 1176, 1183 (10th Cir. 2018) (quoting

6 It is an open question whether speech initially made at an earlier point

in time but continuously published and accessible in real-time (such as a book, social media post, or website) requires the government to prove actual disruption, or if anticipated disruption alone is sufficient to justify taking an adverse employment action. In other words, does this inquiry focus solely on the moment the speech was made or does it also account for the ongoing nature of the speech if the content of the speech (such as a social media post) remains accessible? Because the outcome of this appeal does not require that we answer this interesting, yet vexing question, we decline to do so here. 28 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 29

Kent v. Martin, 252 F.3d 1141, 1146 (10th Cir. 2001)). However, when the

adverse action follows “soon after” the speech, the employer’s intent to “avoid

actual disruption” suffices. Kent, 252 F.3d at 1145. In such cases, we will

“generally ‘defer to a public employer’s reasonable predictions of disruption,’

as long as the predictions are supported by specific evidence.” Deschenie v. Bd.

of Educ. of Cent. Consol. Sch. Dist. No. 22, 473 F.3d 1271, 1279 (10th Cir. 2007)

(quoting Cragg v. City of Osawatomie, 143 F.3d 1343, 1347 (10th Cir. 1998)).

The government bears the burden of proving – with evidence – both its specific

interest in taking the adverse employment action against the plaintiff and that

it acted based on that interest, rather than for another reason. See Bailey,

896 F.3d at 1183.

To assess whether the speech disrupts workplace functioning, we

consider “whether the statement impairs discipline by superiors or harmony

among co-workers, has a detrimental impact on close working relationships for

which personal loyalty and confidence are necessary, or impedes the

performance of the speaker’s duties or interferes with the regular operation of

the enterprise.” Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192,

1207 (10th Cir. 2007) (quoting Rankin v. McPherson, 483 U.S. 378, 388 (1987)).

The context, including the manner, time, and place of the plaintiff’s speech, as

well as the events leading up to it, is highly relevant to this inquiry. Lytle v.

City of Haysville, 138 F.3d 857, 863–64 (10th Cir. 1998). However, we must

29 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 30

balance Brown’s “interest in engaging in free speech, not the value of the

speech itself.” Flanagan, 890 F.2d at 1565.

Ultimately, the government’s burden to justify an adverse employment

action against the plaintiff varies depending on the nature of the speech and

the position held by the employee. See Connick, 461 U.S. at 150. For example,

the more important the speech is to the public discourse, the greater the

burden on the employer to justify responding adversely to it. Curtis v. Okla.

City Pub. Sch. Bd. of Educ., 147 F.3d 1200, 1213 (10th Cir. 1998). Similarly,

the government’s interest in addressing an employee’s speech will depend on

“the extent of authority and public accountability the employee’s role entails.”

Id. (quoting Rankin, 483 U.S. at 390). Employees in confidential, policymaking,

or public-facing positions must exercise greater caution because their speech

is more likely to disrupt their employer’s effective functioning. Id.

Because the district court granted both Defendants’ Rule 12(b)(6)

motions to dismiss, we must next examine how Pickering balancing applies at

the motion to dismiss stage. When assessing whether a plaintiff has

sufficiently pled a “claim upon which relief can be granted,” Fed. R. Civ.

P. 12(b)(6), the court must limit its analysis to the “allegations within the four

corners of the complaint,” Waller, 932 F.3d at 1286 n.1 (quoting Mobley,

40 F.3d at 340).

30 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 31

We require facts to make a complaint plausible, but we do not require a

plaintiff to plead facts over which it has no personal knowledge. See Fed. R.

Civ. P. 11(b)(3) (requiring “the factual contentions [within the complaint] have

evidentiary support or, if specifically so identified, will likely have evidentiary

support after a reasonable opportunity for further investigation or discovery”);

Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (recognizing

the concern that “plaintiffs will need discovery before they can satisfy

plausibility requirements when there is asymmetry of information, with the

defendants having all the evidence” (quoting Gee, 627 F.3d at 1185)). Applied

in this context, when a plaintiff pleads a First Amendment retaliation claim,

they likely have no way of knowing the government’s specific interest in taking

adverse action against them or what internal governmental disruption –

whether actual or anticipated – the speech caused. The information required

to conduct Pickering balancing is generally accessible only to the employer.

To overcome this “asymmetry of information,” Khalik, 671 F.3d at 1191

(quoting Gee, 627 F.3d at 1185), the plaintiff must first conduct discovery.

Without discovery to uncover facts beyond their personal knowledge, the

plaintiff cannot allege facts addressing both sides of the scale for a Pickering

balancing analysis.

Recognizing this reality, we have held that the government bears the

burden of demonstrating its interest and proving disruption. See Bailey,

31 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 32

896 F.3d at 1183. Put differently, the plaintiff cannot reasonably be expected

to allege facts that support the government’s burden on the third element of a

First Amendment retaliation claim.

For all these reasons, conducting Pickering balancing is usually

inappropriate – if not impossible – at the motion to dismiss stage. Several of

our sister Circuits have echoed this point,7 and we have likewise recognized it,

though in unpublished, non-precedential decisions. See Trant v. Oklahoma,

426 F. App’x 653, 661–62 (10th Cir. 2011) (unpublished) (declining to conduct

Pickering balancing at the motion to dismiss stage and highlighting that such

7 See, e.g., Garza v. Escobar, 972 F.3d 721, 727 (5th Cir. 2020) (“‘[I]n

stating a prima facie [First Amendment retaliation claim] at the motion-to- dismiss stage of a case, there is a rebuttable presumption that no balancing is required to state a claim.’ . . . ‘[T]he rebuttable presumption applies because reasonable inferences drawn from a complaint, obviously drafted by the aggrieved employee, will generally lead to a plausible conclusion that the employee’s interest in commenting on matters of public concern outweighs the employer’s interest in workplace efficiency.’” (quoting Burnside v. Kaelin, 773 F.3d 624, 628 (5th Cir. 2014))); Craig v. Rich Twp. High Sch. Dist. 227, 736 F.3d 1110, 1119–20 (7th Cir. 2013) (“[The plaintiff] also maintains that we cannot affirm the dismissal of his suit on this ground because the record is not developed enough to weigh Defendants’ and [plaintiff’s] respective interests. We have previously noted that this analysis ‘can seldom be done on the basis of the pleadings alone.’” (quoting Delgado v. Jones, 282 F.3d 511, 517 (7th Cir. 2002))); Perry v. McGinnis, 209 F.3d 597, 607 (6th Cir. 2000) (“In many cases, due to inadequate factual development, the [Pickering] balancing test ‘cannot be performed on a 12(b)(6) motion.’” (citation omitted)); Weisbuch v. Cnty. of Los Angeles, 119 F.3d 778, 785 (9th Cir. 1997) (Fletcher, J., concurring in part and dissenting in part) (“In order to conduct the Pickering balancing analysis, we must weigh evidence regarding [the plaintiff’s] and his employer’s relative interests; such weighing is inappropriate, if not impermissible, at the dismissal stage.”). 32 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 33

balancing is typically assessed at summary judgment “where an adequate

factual record had been developed to actually ‘show,’ rather than merely

speculate about, the employer’s interest”); Lander v. Summit Cnty. Sch. Dist.,

109 F. App’x 215, 221 (10th Cir. 2004) (unpublished) (“Such a balancing test,

however, is inappropriate in evaluating a dismissal under [Rule] 12(b)(6) as no

countervailing state interest could have been alleged since the claim is

evaluated solely upon the pleadings of the plaintiff.”).

This same rationale is why, in a First Amendment retaliation claim in

the public employment context, qualified immunity usually cannot be afforded

at the motion to dismiss stage either. See Navab-Safavi v. Glassman, 637 F.3d

311, 318 (D.C. Cir. 2011) (“The [defendant] asserts its qualified immunity, but

we are unable to determine without an evidentiary record whether any act it

committed in defense of those functions constituted a violation of clearly

established rights, or even in general terms, where the Pickering balancing

tips.”). Practically speaking, the plaintiff will not know what interest the

government will assert, how it will assert it, or what disruption the

government claims the speech caused, making it impossible for the plaintiff to

(1) allege facts sufficient to show that the defendant “plausibly violated their

constitutional rights,” and (2) identify a materially similar case where the

employee prevailed to demonstrate that their First Amendment right was

clearly established. Robbins, 519 F.3d at 1249.

33 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 34

In sum, “application of the Pickering balancing test will be possible only

after the parties have had an opportunity to conduct some discovery.”

Gustafson v. Jones, 117 F.3d 1015, 1019 (7th Cir. 1997). By granting the

motions to dismiss, the district court erred by jumping the gun on conducting

the balancing test before the parties proceeded to discovery.

The City of Tulsa, in its motion to dismiss, introduced several facts not

pled by Brown in the operative complaint to support its burden under the third

element.8 By relying on these facts in balancing the parties’ interests, which

8 We highlight a few relevant examples:

 “Plaintiff’s posts then created such a public disruption that Chief Jordan and the Tulsa Police Department received numerous inquiries from concerned citizens.” Aple. App. at 23.

 “In this case, however, TPD did experience significant actual disruption. Marq Lewis’ post was shared 300 times. As a result, the police department received phone calls and other inquiries from concerned citizens and from the news media about the Plaintiff’s offensive posts.” Id. at 24.

 “Plaintiff’s posts caused public outrage and disruption and harmed the public’s trust in Plaintiff as a Tulsa Police Officer and that he would treat all members of the community fairly. Plaintiff’s posts threatened to set back continuing efforts by TPD to work with various Tulsa communities to build greater levels of trust between the Police Department and those communities.” Id.

 “Plaintiff’s posts exhibited highly offensive content, glorified violent behavior, and caused significant disruption from the community.” Id. at 26. 34 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 35

were not alleged within the four corners of Brown’s complaint nor fall under a

recognized exception, the district court clearly erred. See Aplt. App. at 51–54

(“Defendant City contends—uncontroverted by Plaintiff—that the posts

‘created such a public disruption that Chief Jordan and the Tulsa Police

Department received numerous inquiries from concerned citizens,’ and the

posts ‘caused public outrage and disruption[,] harmed the public’s trust in

Plaintiff as a Tulsa Police Officer’ and set back the efforts to build trust

between TPD and the community.” (emphasis added and citations omitted)).

Contrary to the district court’s suggestion, Brown was not required to

controvert any facts alleged by the City of Tulsa at the 12(b)(6) stage. In fact,

no plaintiff is required to controvert facts offered by any defendant in the first

instance at the 12(b)(6) stage. See Cuervo v. Sorenson, 112 F.4th 1307, 1312

(10th Cir. 2024).

Reviewing Brown’s operative complaint de novo, he makes no allegations

in support of Defendants’ burden under the third element. The only

conceivably relevant allegations are that the news media covered the story,

and that Brown’s firing undermined the trust and confidence of Tulsa Police

Department officers in their leadership, suggesting Defendants would “‘throw

them under the bus’ to promote political correctness and to appease political

activists . . . .” Aplt. App. at 26 ⁋ 86. However, these allegations fail to satisfy

Defendants’ burden of proving that Brown’s speech caused disruption to the

35 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 36

Tulsa Police Department’s internal operations. First, there are no allegations

that these events caused internal disruptions; second, they occurred after

Brown’s termination; and third, they resulted more from the firing itself than

from Brown’s Facebook posts.

Moreover, the district court construed Brown’s allegation against him,

rather than in his favor, as required by the Rule 12(b)(6) standard. Brooks,

985 F.3d at 1281. In his operative complaint, Brown alleged that any internal

disruption was caused by the City of Tulsa, which terminated him just an hour

and 15 minutes after being notified of Brown’s Facebook posts and then

publicized the decision to the media. Brown alleged this rush to judgment

caused the City of Tulsa’s police officers to no longer respect Chief Jordan,

fearing that he would “throw them under the bus” too, if it was politically

useful for him to do so. Aplt. App. at 26 ⁋ 86. These facts support his claim,

rather than undermine it. The district court erred by citing Brown’s allegations

in support of dismissal and concluding that Brown alleged that he – not the

City of Tulsa – caused internal disruption.

Consequently, Brown successfully states a claim for First Amendment

retaliation, and the district court erred in dismissing this claim against the

City of Tulsa. For similar reasons, the district court also erred in granting

Chief Jordan qualified immunity and dismissing the claim against him in his

personal capacity. Because the district court erred in both applying the

36 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 37

Pickering balancing test and in granting qualified immunity at the motion to

dismiss stage, we reverse the dismissal of Brown’s First Amendment

retaliation claim against both the City of Tulsa and Chief Jordan in his

individual capacity.

Next, we turn to Brown’s Fourteenth Amendment Equal Protection

claim. The crux of his claim is that “Defendants chose to selectively enforce

their policies, practices, procedures, and/or customs against [him] out of an

arbitrary desire to discriminate against [him] because of the content and

viewpoint of his political beliefs” in violation of the Equal Protection Clause.

Aplt. App. at 29. In other words, Brown argues that the Tulsa Police

Department allowed other public employees to use Facebook because their

views were deemed acceptable, while denying him the same opportunity based

on his less favored or more controversial views. Brown asserts that the district

court erred by incorrectly classifying his Equal Protection claim as a “class-of-

one” claim.

The Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution provides that no state shall “deny to any person

within its jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV, § 1. “Equal [P]rotection jurisprudence has traditionally been

37 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 38

concerned with governmental action that disproportionally burdens certain

classes of [persons].” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215–

16 (10th Cir. 2011). Nonetheless, a plaintiff can still bring an Equal Protection

claim even without alleging membership in a specific class by asserting they

were “intentionally treated differently from others similarly situated” without

a rational basis under a “class-of-one” theory. Vill. of Willowbrook v. Olech,

528 U.S. 562, 564 (2000). A typical “class-of-one” case arises when a public

official singles out an individual without any legitimate reason, prompted

instead by personal motive. Kan. Penn Gaming, LLC, 656 F.3d at 1216.

However, a “class-of-one” theory is not cognizable in the public

employment context and was foreclosed in Engquist v. Oregon Department of

Agriculture, 553 U.S. 591, 605 (2008). In Engquist, the Court concluded this

theory of Equal Protection “is simply a poor fit in the public employment

context,” and reasoned that

[t]o treat employees differently is not to classify them in a way that raises [E]qual [P]rotection concerns. Rather, it is simply to exercise the broad discretion that typically characterizes the employer- employee relationship. A challenge that one has been treated individually in this context, instead of like everyone else, is a challenge to the underlying nature of the government action.

Id. The Court emphasized, though, that its holding did not affect the viability

of class-based discrimination claims in the public employment context. Id.

38 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 39

Brown does not allege that he is a member of a particular class that is

being treated differently from other groups of individuals. Rather, he asserts

Defendants engaged in viewpoint discrimination, or that he is being singled

out and intentionally treated differently by Defendants without a rational

basis. However, contrary to his assertions, he is alleging a quintessential

“class-of-one” Equal Protection claim, so the district court did not err in

recognizing his Equal Protection claim for what it is.

In support of his Equal Protection claim, Brown cites to Police

Department of City of Chicago v. Mosley for the proposition that “under the

Equal Protection Clause . . . government may not grant the use of a forum to

people whose views it finds acceptable, but deny use to those wishing to express

less favored or more controversial views.” 408 U.S. 92, 96 (1972). Mosely

addressed whether a city ordinance prohibiting certain types of picketing but

not others was justified by an appropriate governmental interest as required

by the Equal Protection Clause. Id. at 94–95. The Court ultimately concluded

the ordinance furthered no legitimate government interest because the

“government must afford all points of view an equal opportunity to be heard.”

Id. at 96. Unlike Mosely, this case does not involve an ordinance by the City of

Tulsa. Also, given that Mosely neither concerns a “class-of-one” claim nor

public employment, it offers no support for Brown’s argument.

39 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 40

Because a class-of-one theory is not viable in the public employment

context, Engquist, 553 U.S. at 605, Brown fails to state a claim for relief under

the Fourteenth Amendment’s Equal Protection Clause. Accordingly, we affirm

the dismissal of this claim against both the City of Tulsa and Chief Jordan in

his individual capacity.

Lastly, Brown challenges the district court’s decision to decline

exercising supplemental jurisdiction over his state law claim after dismissing

the federal claims.

We review “a denial of supplemental jurisdiction for abuse of discretion.”

Nielander v. Bd. Of Cty. Comm’rs, 582 F.3d 1155, 1172 (10th Cir. 2009). In any

civil action where a district court has original jurisdiction, the court “shall have

supplemental jurisdiction” over related claims that “form part of the same case

or controversy” under Article III of the United States Constitution. 28 U.S.C.

§ 1367(a). However, a district court may decline to exercise supplemental

jurisdiction over a related claim if it has dismissed all claims over which it had

original jurisdiction. Id. at § 1367(c)(3).

Here, the district court declined to exercise supplemental jurisdiction

over Brown’s state law claim after dismissing his two 42 U.S.C. § 1983 claims.

The court had original jurisdiction over the § 1983 claims pursuant to 28 U.S.C.

§ 1331, which provides district courts with jurisdiction over civil actions

40 Appellate Case: 23-5133 Document: 41-1 Date Filed: 01/07/2025 Page: 41

arising under Federal law. Because we conclude that the district court erred in

dismissing Brown’s First Amendment claim, we reverse its decision to decline

supplemental jurisdiction over the state law claim and remand for

reconsideration. See, e.g., Greer v. Dowling, 947 F.3d 1297, 1304 n.5 (10th Cir.

2020) (remanding for district court to reconsider exercising supplemental

jurisdiction over state law claim after reversing dismissal of federal claim);

Baca v. Sklar, 398 F.3d 1210, 1222 n.4 (10th Cir. 2005) (same); Sw. Air

Ambulance, Inc. v. Las Cruces, 268 F.3d 1162, 1179 (10th Cir. 2001) (same).

In conclusion, we AFFIRM the dismissal of Brown’s Fourteenth

Amendment Equal Protection claim against both the City of Tulsa and Chief

Jordan in his individual capacity for failure to state a claim under

Rule 12(b)(6), we REVERSE the dismissal of Brown’s First Amendment free

speech claim against both the City of Tulsa and Chief Jordan in his individual

capacity for failure to state a claim under Rule 12(b)(6) and the district court’s

decision to decline exercising supplemental jurisdiction over Brown’s state law

claim, and we REMAND for further proceedings consistent with this opinion.