Henry v. Oklahoma County Boar

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 19, 1999
• Docket: 98-6283
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 19 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

ANTHONY C. HENRY,

Plaintiff-Appellant,

v. No. 98-6283 (D.C. No. 97-CV-1591) OKLAHOMA COUNTY BOARD (W.D. Okla.) OF COUNTY COMMISSIONERS, a Body Politic; SHIRLEY A. DARRELL, Individually and in her official capacity as County Commissioner for Oklahoma County,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before TACHA , BARRETT , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 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.

Plaintiff Anthony C. Henry appeals from the district court’s grant of

summary judgment dismissing his 42 U.S.C. § 1983 civil rights complaint.

He asserts that defendants violated his First Amendment rights by terminating him

allegedly because he cooperated with a criminal investigation. This court

exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.

Plaintiff was employed by Oklahoma County as a road equipment operator.

He worked in the county district supervised by County Commissioner Shirley A.

Darrell, who had final decision-making authority over the hiring and firing of

employees within that district. In June 1995, during a grand jury investigation

into alleged misappropriation of county funds on road and construction projects,

plaintiff was questioned by the county district attorney’s office and the Federal

Bureau of Investigation. He cooperated with the criminal investigation and kept

in contact with investigators on a monthly basis through November 1996.

Plaintiff told a few coworkers he was cooperating, but did not tell any of his

supervisors. As a result of plaintiff’s reports of possible misuse of county assets,

an unmarked FBI van observed the county work site where plaintiff was working

on two occasions, once in June 1996, and once in November 1996. Plaintiff’s

-2- supervisor asked him if he knew anything about the van, but plaintiff said he

did not.

In January 1997, plaintiff used profanity and racial slurs towards a

supervisor, refusing to follow the supervisor’s work order, He also became angry

and used profanity during an investigation of this incident by a project manager.

His behavior was reported to Commissioner Darrell, who terminated his

employment and immediately issued a policy statement to county employees that

the use of profanity against supervisors would no longer be tolerated. Plaintiff

then filed this § 1983 action.

Generally, public employment cannot be conditioned “on a basis that

infringes the employee’s constitutionally protected interest in freedom of

expression.” Connick v. Myers , 461 U.S. 138, 142 (1983). The district court

concluded that plaintiff’s cooperation with the criminal investigation was

protected speech because it touched on a matter of public concern, and that the

importance of the speech outweighed the county’s interest in an efficient and

effective workplace. See Lytle v. City of Haysville , 138 F.3d 857, 863 (10th Cir.

1998) (describing four-part test used to determine if public employer has

contravened a public employee’s free speech rights).

Defendants presented evidence, however, that none of the county

commissioners or the individuals involved in plaintiff’s termination had any

-3- knowledge of plaintiff’s cooperation with the criminal investigation until he filed

his § 1983 action, that his cooperation had played no role in his termination, and

that the sole reason he was terminated was his insubordination, profanity and

racial slurs. The district court concluded that plaintiff failed to come forward

with any evidence that his speech had played a substantial or motivating factor

in his termination. See id. at 863.

Plaintiff concedes that he never discussed his cooperation with any

supervisor or any of the defendants, and he concedes the only reason ever given

for his termination was his admitted insubordination and use of profanity and

racial slurs. However, plaintiff asserts a trier of fact could infer that defendants

terminated him because of his cooperation in the criminal investigation because

(1) defendants were aware of an earlier, unrelated criminal investigation

involving the use of county funds, (2) there is no record of another employee

being terminated for using profanity, and (3) plaintiff’s supervisor asked him if he

knew anything about the unmarked van observing the work site. This evidence is

nothing more than pure speculation, and the district court correctly held that it is

insufficient to send the case to the jury on the issue of motivation. See Hom v.

Squire , 81 F.3d 969, 974-75 (10th Cir. 1996) (plaintiff’s mere belief that he was

dismissed in retaliation for exercising protected speech is insufficient, by itself,

to defeat a summary judgment motion).

-4- After a de novo review of the parties’ briefs and contentions, the district

court’s order, and the entire record on appeal, this court finds no reversible error

and affirms for substantially the same reasons set forth in the district court's order

granting the motion for summary judgment. The judgment of the United States

District Court for the Western District of Oklahoma is AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge

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