Court: Court of Appeals for the Tenth Circuit; May 5, 1994; Federal Appellate Court
Citation of unpublished opinions is permitted if they hold persuasive value on a material issue and are provided with the citing document or during oral argument to the Court and all parties. This ruling arises from a case in the United States Court of Appeals for the Tenth Circuit, where Sharon Pierce appeals the summary judgment favoring her former employer, Richard P. Heuckendorf, regarding her termination claims based on the First Amendment and Oklahoma public policy. The court finds that Pierce did not demonstrate her discharge was related to protected speech or that it violated state public policy, leading to an affirmation of the lower court's decision.
Pierce was the executive secretary for the Oklahoma Department of Veterans Affairs, and during a period of internal conflict within the War Veterans Commission, she became involved in a dispute regarding the procedural handling of a meeting agenda. After a contentious discussion about agenda preparation, Pierce filed a notice and agenda without consulting Heuckendorf, who perceived this action as disloyal and insubordinate. Heuckendorf offered her an alternative position, which she declined, resulting in her termination. The court concluded that the evidence did not support her claims of wrongful termination.
Ms. Pierce filed a lawsuit against Mr. Heuckendorf, claiming her termination was due to exercising her First and Fourteenth Amendment rights and violated Oklahoma's public policy, leading to wrongful termination under the public policy exception to at-will employment. Both parties sought summary judgment, which the district court granted in favor of Mr. Heuckendorf, concluding Ms. Pierce did not demonstrate engagement in constitutionally protected speech or a breach of public policy.
The appellate court reviews summary judgment de novo, adhering to standards that require no genuine issue of material fact and entitlement to judgment as a matter of law. In First Amendment cases, an independent examination of the record is necessary to ensure no infringement on free expression occurs. To succeed in her claim, Ms. Pierce needed to prove her speech was of public concern, her interest in the speech outweighed the employer's responsibilities, and that the speech was a motivating factor in her termination.
However, the court found Ms. Pierce failed to meet this burden. It questioned whether she engaged in 'speech' since she did not intend to convey a message with the notice and agenda she filed, which were not her own words, and she acted on the chairman's instructions. Additionally, while conduct can be considered 'speech,' Ms. Pierce did not assert that her actions were intended to express a message. Precedent cases suggest that without an intent to convey a particular message, her claims do not rise to a First Amendment violation.
Even if the notice's contents are attributed to Ms. Pierce, the record shows her speech was not the reason for her termination. According to the 'but-for' test from Mt. Healthy City School District Board of Education v. Doyle, the employee must prove that their speech was a substantial factor in the employment decision. If this burden is met, the employer can avoid liability by demonstrating they would have made the same decision regardless of the protected speech. In this case, Ms. Pierce was terminated for disobeying a directive from the Commission regarding the preparation of the notice and agenda, and the specifics of the notice were deemed irrelevant to the termination decision.
The document references several cases that illustrate the distinction between terminations based on employee misconduct versus protected speech. In Jurgensen v. Fairfax County, the court found that an employee was demoted for violating a regulation, not for exercising free speech. Similarly, in McAdams v. Matagorda County Appraisal Dist., the court ruled that the employee's termination was due to insubordination rather than his criticisms of the board. In Smith v. Cleburne County Hosp., the plaintiff's suspension was attributed to disruptive behavior over time, not his criticisms.
Further, even if Ms. Pierce's termination was linked to her speech, she has not demonstrated that it was 'protected' speech, which must pertain to matters of public concern. The determination of whether speech addresses a public concern is based on the content, form, and context of the statement.
Analyzing whether speech is a matter of public concern involves assessing the speaker's motives, specifically if the speech aims to reveal misconduct or merely addresses personal grievances. Relevant case law indicates that speech is more likely deemed of public concern when it exposes government corruption or misconduct. In this instance, Ms. Pierce's speech, which included a notice and agenda for a closed meeting regarding internal employment matters, did not reveal any evidence of corruption or malfeasance, nor was it open to public participation. The context suggests the matter was a private departmental dispute, not relevant to public interests.
Additionally, because the speech occurred during Ms. Pierce's official duties, it further diminishes the likelihood of it being classified as public concern speech, thus not protected by the First Amendment. The district court concluded correctly that Ms. Pierce's termination did not violate Oklahoma's public policy regarding at-will employment. Although she claimed protection under the Open Meeting Act, her termination was not related to filing the notice and agenda but rather accepting them from an unauthorized source. Therefore, her termination lacks the requisite motivation linked to protected conduct for a public policy exception to apply.
The court affirmed the district court's judgment, indicating that Ms. Pierce's claims do not warrant a tort remedy under public policy exceptions. The order is not binding precedent except under specific legal doctrines and allows for limited citation under court conditions. Furthermore, the doctrine of jus tertii, which allows one to assert another's rights, is inapplicable here as the notice and agenda were published without issues, and the authors did not experience adverse effects, thus no third-party rights exist for Ms. Pierce to assert.
