Paden v. Keeling

495 F. App'x 949
CourtCourt of Appeals for the Tenth Circuit
DecidedSeptember 4, 2012
Docket12-6041
StatusUnpublished

This text of 495 F. App'x 949 (Paden v. Keeling) 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
Paden v. Keeling, 495 F. App'x 949 (10th Cir. 2012).

Opinion

ORDER AND JUDGMENT *

JOHN C. PORFILIO, Senior Circuit Judge.

Ted Keeling appeals from the district court’s order denying summary judgment based on qualified immunity. We dismiss the appeal for lack of jurisdiction.

*950 I.

Plaintiff Robert Paden brought this 42 U.S.C. § 1983 action against his former employer, the Texas County Board of County Commissioners, and Keeling, his former supervisor, alleging that he was terminated in violation of his rights of free speech and free association under the First Amendment. In his complaint, Pa-den alleged that while Keeling was running for re-election to the position of County Commissioner, Paden supported Keeling’s opponent in the July 2010 primary election. Paden claimed that Keeling later terminated his employment in August 2010 in retaliation for his exercise of his First Amendment rights.

Keeling filed a motion for summary judgment, arguing that there was insufficient evidence in the record from which a trier of fact could reasonably conclude that Paden’s speech was a substantial or motivating factor in his termination. See Ballard v. Muskogee Reg’l Med. Ctr., 238 F.3d 1250, 1252 (10th Cir.2001) (listing as an element of First Amendment retaliation claim against employer that speech was a substantial or motivating factor in the adverse employment decision). Keeling contended the evidence overwhelmingly established that he terminated Paden based on his insubordinate conduct in using profane language. Keeling also argued that the evidence showed he would have terminated Paden regardless of Paden’s protected speech. See id. (holding if employee establishes all elements of First Amendment retaliation claim, burden shifts to defendant to show he would have made the same decision in absence of protected conduct). Keeling asserted that he should be granted summary judgment on Paden’s freedom-of-association claim on the same bases. Finally, Keeling contended that he was entitled to qualified immunity because his termination of Paden based on Paden’s use of profane language was objectively reasonable under the circumstances.

Paden responded that questions of material fact existed as to Keeling’s motivation in terminating his employment and whether Keeling would have terminated him absent his protected speech and political association. More specifically, Paden contended that Keeling’s reliance on a county policy against using profane language was a pretext for his true motivation in terminating Paden. He also argued the evidence showed that Keeling knew or should have known that terminating an employee for exercising his First Amendment rights was a violation of the law.

The district court denied Keeling’s summary judgment motion. The court first summarized the conflicting evidence presented by the parties. Because Keeling argues that the district court’s findings were insufficient, we relate them in their entirety here:

Plaintiff was an at-will employee for ... District 1 of the defendant Texas County Board of County Commissioners (“County”). Keeling served as plaintiffs foreman. Keeling was later elected as commissioner in 2006.
Upon plaintiffs employment, plaintiff received a copy of the Employee Personnel Policy Handbook for Texas County and signed an Acknowledgment Form. County policy prohibits employees from participating in campaigning or political activity during work hours. County policy also prohibits employees from fighting, obscene or abusive language, threatening language, and insubordination.
On a few occasions, Keeling took informal corrective action against plaintiff by speaking with him about his behavior. In 2008 or 2009, Keeling told plaintiff to refrain from using foul language in ■ the office around the secretaries. *951 Plaintiff disputes that Keeling has ever enforced County’s policy.
In 2008, plaintiff ceased seeing Keeling socially and decided that he and Keeling were no longer friends. Plaintiff alleges that three to four months prior to Keeling’s re-election, Keeling began to treat plaintiff differently.
In 2010, Keeling ran for re-election against party-opponent Ruth Teel (“Teel”). Plaintiff did not hold any official role in Teel’s campaign, formally campaign for her, or display any of Teel’s paraphernalia. However, plaintiff alleges that he told friends and acquaintances to vote for Teel. Plaintiff further alleges that nine other employees supported Teel.
Based upon rumors, plaintiff told people that if Keeling won, he would terminate six or seven people in District 1. Keeling heard rumors that the election was being discussed among employees during the day. During a regularly scheduled morning meeting, Keeling told employees that they were entitled to vote however they wanted, but it was a violation of County policy to talk about it at work. Purportedly, during the meeting, Keeling accused plaintiff and others of campaigning for his opponent.
According to plaintiff, after the election, Keeling referred to plaintiff as a “f-ing liar” and/or said it was an “f-ing lie” in regards to plaintiff’s assertion that plaintiff reported his equipment needed maintenance. However, prior to the 2010 campaign, Keeling also accused plaintiff of lying about an incident where plaintiff reported road damage by a private bulldozer.

Aplt.App., Vol. 2 at 624-25. 1

The district court held that genuine issues of material fact precluded summary judgment because “a rational jury could infer that [Paden’s] speech was a substantial or motivating factor to [his] termination.” Id. at 628. The court based that conclusion upon the evidence that “Keeling accused [Paden] and others of campaigning for his opponent and saying bad things about Keeling” and “evidence that, prior to [Paden’s] termination, Keeling never took corrective action against other employees for use of profane language.” Id. (quotation, brackets, and ellipsis omitted). The court also held that “a rational jury could infer that Keeling would not have terminated [Paden] in the absence of [his] political speech because, as discussed above, Keeling never took corrective action against other employees for use of profane language.” Id. On the same bases, the district court also concluded that a reasonable jury could infer that Paden’s political association was a substantial or motivating factor behind his termination. Accordingly, the court held that Keeling was not entitled to summary judgment on either of Paden’s claims.

The court also held that, in light of its findings, Paden had presented sufficient evidence to support a violation of his First Amendment rights, which were clearly established at the time of Keeling’s alleged misconduct. Therefore, the court denied Keeling’s motion for summary judgment based on qualified immunity.

II.

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495 F. App'x 949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paden-v-keeling-ca10-2012.