Helget v. City of Hays, Kansas

844 F.3d 1216, 41 I.E.R. Cas. (BNA) 1489, 2017 WL 33525, 2017 U.S. App. LEXIS 140
CourtCourt of Appeals for the Tenth Circuit
DecidedJanuary 4, 2017
Docket15-3093
StatusPublished
Cited by71 cases

This text of 844 F.3d 1216 (Helget v. City of Hays, Kansas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Helget v. City of Hays, Kansas, 844 F.3d 1216, 41 I.E.R. Cas. (BNA) 1489, 2017 WL 33525, 2017 U.S. App. LEXIS 140 (10th Cir. 2017).

Opinions

TYMKOVICH, Chief Judge.

Firma Helget worked for the City of Hays, Kansas, as the administrative secretary for the Hays Police Department. In 2012, the City terminated Helget, and she initiated this 42 U.S.C. § 1983 action against the City, City Manager Toby Dougherty, and Police Chief Donald Scheibler, alleging they violated her First Amendment rights. Helget claims they terminated her in retaliation for her voluntarily providing an affidavit in support of a former police officer’s wrongful-termination litigation against the City.

[1219]*1219The district court granted summary judgment in favor of the defendants on Helget’s First Amendment retaliation claims, concluding the City’s interest as a public employer outweighed Helget’s interest in her speech regarding a former employee’s litigation. The court also granted qualified immunity to Dougherty and Scheibler.

We affirm. Applying the familiar Garcetti/Pickering1 test, we conclude the City’s operational interests outweigh Helget’s speech interest in submitting an affidavit in ongoing civil litigation. Because Helget’s role required her to work closely with .her superiors and maintain confidential information, her disclosure of those confidences caused her superiors to lose trust in her, directly undermining the Department’s operations. We also reject Helget’s attempt to collaterally attack the district court’s order because the court entered summary judgment before ruling on her pending motion for spoliation sanctions. Helget forfeited this challenge because she failed to sufficiently raise the issue during" summary judgment briefing.

I. Background

Firma Helget1 was the administrative secretary for the Hays Police Department, a position she occupied for ten years before her termination in 2012. She joined the City in 1989, and during her time with the Department, she worked with multiple police chiefs and assistant police chiefs.

In her capacity as administrative secretary, Helget was tasked with “facilitating the smooth operation of the Department” and “act[ing] as ‘a general information center.” Supp. App. 141. This required Helget to work closely with the police chief and assistant police chief and to maintain the Department’s confidential records and files. The City’s personnel manual specifically informs its employees that “disclosing confidential records or information unless directed to do so by a department head or supervisor” is cause for termination. App. 4 (Memorandum and Opinion, Mar. 19, 2015, Doc. 211) (quoting personnel manual).

One of Helget’s official duties was to act as the Department’s purchasing agent. In November 2010, she prepared a list of officers who were due new ballistic vests in the upcoming year—ballistic vests have a limited life and are replaced approximately every five years. Helget presented the list to then-Assistant Police Chief Philip Hartsfield, who instructed her to remove Officer Blaine Dryden from the list. This was the first time Helget had been told to remove an officer from a ballistic vest ordering list. She removed Dryden’s name and, on December 6, 2010, she ordered the vests as Hartsfield instructed.

One month later, on January 7, 2011, the City terminated Dryden, citing an incident that occurred in late December 2010, where Dryden was accused of unprofessional and inappropriate conduct at a court hearing. Dryden, however, maintained the City wrongfully terminated him because of his union-organizing activities, and subsequently sued the City under 42 U.S.C. § 1983. In challenging the City’s reason for his termination, Dryden alleged the City had decided not to order him a new ballistic vest in early December 2010, prior to the incident the Department used to justify his termination.

During summary judgment briefing in the Dryden federal court case, Dryden’s counsel contacted Helget regarding the case, and she agreed to execute an affidavit in support of the litigation. In the affidavit, Helget stated:

[1220]*1220(1) She had been instructed to remove Dryden from the ballistic vest ordering list in early December 2010;
(2) Dryden was known to be an active member in the local Fraternal Order of Police chapter; and
(3) Former Police Chief James Braun had cautioned her about speaking with Dryden when she pursued her own grievance against the Department.

App. 40-41. Helget did not consult with anyone at the City before disclosing this information. And, her affidavit was later used as an exhibit to Dryden’s opposition to the City’s motion for summary judgment.

On May 1, 2012—after Helget executed the affidavit, but before City officials were aware of it—Police Chief Donald Scheibler and Assistant Police Chief Brian Dawson met with Helget to discuss her job performance. They counseled her about her excessive personal internet use during business hours and about her demeanor with her coworkers. The meeting was recorded and included in Helget’s personnel file. Several days later, on May 9, 2012, Helget informed Scheibler she was considering leaving the Department; she had in fact applied for an administrative assistant position at a local university.

On May 10, Scheibler, for the first time, learned about Helget’s affidavit from the City’s legal counsel in the Dryden litigation. City officials sent multiple emails to one another about how to handle the situation. In particular, Human Resource Coordinator Erin Giebler and Assistant City Manager Paul Briseno exchanged emails regarding whether the City could discipline or terminate Helget for signing the affidavit. As a result of Helget’s statements, Scheibler testified he. no longer trusted Helget with confidential information: “I think she intentionally took that confidential information and released it ... just deteriorating any hope for any trust between the person that she was supposed to help run the police department;” App. 9 (Memorandum and Opinion, Mar. 19, 2015, Doc. 211) (quoting deposition testimony).

Accordingly, on May 14, Scheibler presented a memorandum to City Manager Toby Dougherty recommending the City terminate Helget. The list of reasons for termination included: (1) lack of communication and interaction with command staff; (2) negative interactions with staff; (3) violations of the City’s personal-internet-use policy; and (4) disclosing confidential information in the Dryden litigation. Scheibler terminated Helget two days later.

II. Analysis

Helget argues the district court erred in granting summary judgment to the defendants. She contends the court erred in finding her speech was not entitled to First Amendment protection as a matter of law and in granting qualified immunity to Dougherty and Scheibler.

Although Helget’s challenges are .mostly evidentiary in form, we have “an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” Rankin v. McPherson, 483 U.S. 378, 386 n.9, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) (citation omitted);

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844 F.3d 1216, 41 I.E.R. Cas. (BNA) 1489, 2017 WL 33525, 2017 U.S. App. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/helget-v-city-of-hays-kansas-ca10-2017.