Kincade v. City of Blue Springs, Mo.

• Decision Date: 12 October 1995
• Docket Number: No. 94-2611,94-2611
• Citation: 64 F.3d 389
• Parties: Ronald KINCADE, Plaintiff-Appellee, v. CITY OF BLUE SPRINGS, MISSOURI; Gregory Grounds, Individually, and in his capacity as Mayor, Defendants-Appellants, Frederick Siems, Individually, and in his capacity as City Administrator, Defendant, Russell Clark, in his capacity as Alderman; Evelyn Ericson, in her capacity as Alderman, Defendants-Appellants, Dixie Flynn, in her capacity as Alderman, Defendant, Larry Morgan, in his capacity as Alderman; Emil Spears, in his capacity as Alderman, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 389

64 F.3d 389

Ronald KINCADE, Plaintiff-Appellee, v. CITY OF BLUE SPRINGS, MISSOURI; Gregory Grounds Individually, and in his capacity as Mayor Defendants-Appellants Frederick Siems, Individually, and in his capacity as City Administrator, Defendant Russell Clark, in his capacity as Alderman; Evelyn Ericson, in her capacity as Alderman, Defendants-Appellants, Dixie Flynn, in her capacity as Alderman, Defendant, Larry Morgan, in his capacity as Alderman; Emil Spears, in his capacity as Alderman, Defendants-Appellants.

No. 94-2611.

United States Court of Appeals, Eighth Circuit.

Submitted Jan. 13, 1995.

Decided Aug. 25, 1995.

Rehearing and Suggestion for Rehearing

En Banc Denied Oct. 12, 1995.

Shelly L. Freeman, Kansas City, MO, argued (John R. Phillips, Kansas City, MO, on the brief), for appellants.

Gwen G. Caranchini, Kansas City, MO, argued, for appellee.

Before HANSEN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and BOGUE, ^* Senior District Judge.

HANSEN, Circuit Judge.

Ronald Kincade brought this 42 U.S.C. Sec. 1983 action, claiming that the City of Blue Springs, Missouri, and several City officials (Appellants) violated his First Amendment rights by discharging him from his employment as the City Engineer/Director of Public Works. The district court ¹ denied the Appellants' motions for summary judgment. The Appellants appeal, contending that Kincade's speech is not constitutionally protected, they are entitled to qualified immunity, and insufficient evidence of causation exists between Kincade's speech and his termination. We affirm.

I.

On June 4, 1990, Ronald Kincade was hired as the Engineer/Director of Public Works for Blue Springs, Missouri (City). Kincade's written job description for this position required him to: represent the City in contacts with other governmental jurisdictions, contractors, and the general public on engineering matters; serve as a member of the City's Zoning and Planning Commission; and meet with and advise the City Administrator, the Mayor, and the Board of Aldermen (BOA) on City construction and development projects. One of the first assignments Kincade received in this position was to provide the BOA with advice as to whether the Waterfield Dam was structurally capable of holding the Adams Dairy Parkway, a road that the City intended to construct in the future.

On August 5, 1991, Kincade gave a verbal status report on the assignment to the Mayor (Gregory Grounds), the BOA (Russell Clark, Evelyn Ericson, Dixie Flynn, Larry Morgan, and Emil Spears), the City Administrator (Frederick Siems), and the City Attorney (Robert McDonald). The comments Kincade made during this verbal status report are the subject of this appeal. Kincade's report was made in an executive session, which is closed to citizens, see Mo.Ann.Stat. Sec. 610.021 (Vernon 1995), and the content of his report was not recorded. Kincade made this report in his capacity as City Engineer and pursuant to an assignment from the BOA.

Kincade contends that during the August 5 meeting, he offered opinions on certain issues with respect to the Waterfield Dam. Specifically, he claims that he stated that in June of 1987 the City paid $62,510 to several local developers, including Bill House, for work that had not yet been completed, and that the dam had not received certain certification as the agreement with the developers required. Kincade also contends that he stated that, due to several inadequacies of the dam which he proceeded to outline, homes and residents downstream from the dam would be in danger of being flooded if the structural integrity of the dam was compromised. Finally, Kincade claims that he also raised the question of legal action against House over issues relating to the dam. ²

The Appellants contend that Kincade did not make the above statements and, further, that he failed to provide direct answers to their questions about the dam. They assert that Kincade stated that the dam would have to be torn down and rebuilt in order to ensure that it was structurally safe, and they also claim that at no time did Kincade express an opinion concerning the structural integrity of the dam. The Appellants claim that Kincade's report was wholly inadequate for the assignment he was given.

In an executive session of the BOA on October 21, 1991, a majority of the BOA voted to request that Kincade either resign his position or be terminated. At some point during the meeting, City Attorney McDonald explained that under the City ordinance and Missouri law, Kincade was an employee-at-will who served at the pleasure of the BOA and that Kincade's employment could be terminated at any time for any reason, so long as the reason was not unlawful. The parties dispute whether the City Attorney gave this advice before or after the BOA decided to terminate Kincade.

On October 24, 1991, Kincade's employment was terminated. Kincade then filed this 42 U.S.C. Sec. 1983 action, arguing that he was unlawfully terminated for making comments protected by the First Amendment on three occasions. The district court granted the Appellants' motions for summary judgment with respect to two instances of speech, but denied their motions for summary judgment with respect to Kincade's claim that he was unlawfully discharged because of his speech on August 5, 1991. ³ This appeal followed.

II.

A.

The Appellants contend that they are entitled to summary judgment for several reasons. First, they argue that Kincade's August 5, 1991, speech is not constitutionally protected. Second, they contend that they are entitled to qualified immunity. Finally, they argue that Kincade has presented insufficient evidence that his August 5 speech was the cause of his termination.

We must first satisfy ourselves that we have jurisdiction to address these arguments. A district court's denial of a defendant's summary judgment motion on a claim of qualified immunity is an immediately appealable decision, even though the denial is not a final judgment. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985). In addition, we have held that "when an interlocutory appeal is before us under Mitchell as to the defense of qualified immunity, we have jurisdiction also to decide closely related issues of law," i.e., pendent appellate claims. Drake v. Scott, 812 F.2d 395, 399 (8th Cir.), cert. denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987). However, we must re-examine this principle in light of the Supreme Court's recent holding in Swint v. Chambers County Comm'n, --- U.S. ----, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). In Swint, a unanimous Court ruled that although the Eleventh Circuit had jurisdiction to immediately review a district court's denial of a police officer's summary judgment motion on qualified immunity grounds, the court of appeals did not have jurisdiction to address an unrelated question of liability presented by the co-defendant County Commission. Id. at ----, 115 S.Ct. at 1212. The Court emphasized that there was "no 'pendent party' appellate jurisdiction of the kind" that the court of appeals exercised in that case. Id. Nevertheless, the Court stated that, "[w]e need not definitively or preemptively settle here whether or when it may be proper for a court of appeals with jurisdiction over one ruling to review, conjunctively, related rulings that are not themselves independently appealable." Id.

Under Swint, "pendent appellate jurisdiction might still be appropriate where the otherwise nonappealable decision is 'inextricably intertwined' with the appealable decision, or where review of the nonappealable decision is 'necessary to ensure meaningful review' of the appealable one." Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir.1995) (quoting Swint, --- U.S. at ----, 115 S.Ct. at 1212). See also L.S.T., Inc. v. Crow, 49 F.3d 679, 683 n. 8 (11th Cir.1995) (Swint precludes courts from addressing pendent interlocutory claims that are not "inextricably intertwined" with the collateral order that is properly appealed, or where review of the pendent claim is not necessary to ensure meaningful review of the properly appealed issue); Kaluczky v. City of White Plains, 57 F.3d 202, 207 (2d Cir.1995) (Swint limited to claims involving "pendent party" appellate jurisdiction; Court did not narrow scope of pendent appellate jurisdiction, appearing to contemplate pendent appellate jurisdiction over claims that are "inextricably intertwined" or "necessary to ensure meaningful review" of qualified immunity issue).

[A] pendent appellate claim can be regarded as inextricably intertwined with a properly reviewable claim on collateral appeal only if the pendent claim is coterminous with, or subsumed in, the claim before the court on interlocutory appeal--that is, when the appellate resolution of the collateral appeal necessarily resolves the pendent claim as well.

Moore, 57 F.3d at 930. To the extent these definitions of pendent appellate claims qualify as our own "closely related" definition, we adopt them as our own standard.

In this case, our jurisdiction to hear the individual Appellants' qualified immunity claims is without doubt. We conclude that we have jurisdiction to hear the Appellants' claims that Kincade's August 5, 1991, speech is not constitutionally protected because the claims are "inextricably intertwined" with their qualified immunity arguments. Both issues require application of the same constitutional test, and therefore, the question concerning whether the speech is entitled to constitutional protection is "coterminous with, or subsumed in" the qualified immunity issue.

However, we conclude that the Appellants' argument that Kincade has presented insufficient evidence to establish that his August 5, 1991, speech caused his termination is not "inextricably intertwined" with the qualified immunity claims. This causation argument presents significantly different issues. Moreover,...