Butler v. Bd. of Cnty. Com'Rs for San Miguel Cnty., 18-1012

• Decision Date: 29 March 2019
• Docket Number: No. 18-1012,18-1012
• Citation: 920 F.3d 651
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: Jerud BUTLER, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS FOR SAN MIGUEL COUNTY; Mike Horner, in his individual capacity; Kristl Howard, in her individual capacity, Defendants-Appellees.

920 F.3d 651

Jerud BUTLER, Plaintiff-Appellant,

v.BOARD OF COUNTY COMMISSIONERS FOR SAN MIGUEL COUNTY; Mike Horner, in his individual capacity; Kristl Howard, in her individual capacity, Defendants-Appellees.

No. 18-1012

United States Court of Appeals, Tenth Circuit.

FILED March 29, 2019

Benjamin P. Meade (Nicholas W. Mayle and Damon Davis with him on the briefs), Killian Davis Richter & Mayle, PC, Grand Junction, Colorado, for Plaintiff-Appellant.

Jeffrey L. Driscoll, Williams, Turner & Holmes, P.C., Grand Junction, Colorado, for Defendants-Appellees.

Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

The First Amendment protects a government employee’s speech (1) made as a citizen (2) on a matter of public concern (3) if the employee’s right to speak outweighs the government’s interest as an employer in an efficient workplace. These are the first three steps of the familiar five-part Garcetti/ Pickering analysis¹ and they present legal questions for a court to resolve. This appeal focuses on the second inquiry, whether a public employee’s speech is on a matter of public concern. Generally, a matter of public concern relates to any matter of political, social, or other concern to the community. In order to determine whether speech is on a matter of public concern, the Supreme Court has directed that we consider the content, form and context of the particular speech at issue in a given case.

Plaintiff-Appellant Jerud Butler is a government employee, a supervisor for the San Miguel County, Colorado, Road and Bridge Department. He alleges that his supervisors violated his First Amendment freedom of speech when they demoted him for testifying truthfully in state court as a character witness for his sister-in-law. The state-court proceeding concerned a domestic child custody dispute between Butler’s sister-in-law and her ex-husband, who also works for the County’s Road and Bridge Department.

The district court dismissed Butler’s First Amendment claim with prejudice under Fed. R. Civ. P. 12(b)(6), concluding at step two of the Garcetti/ Pickering analysis that Butler’s testimony at the custody hearing, given as a private citizen, was not on a matter of public concern. Having jurisdiction under 28 U.S.C. § 1291, we AFFIRM. In doing so, we reject Butler’s assertion that any truthful sworn testimony given by a government employee in court as a citizen is per se always a matter of public concern. The rule Butler suggests, and which several circuits have adopted, gives dispositive weight to the form and context of a public employee’s speech (sworn testimony in a judicial proceeding), but fails to give any weight to the content of that testimony. We, instead, employ a case-by-case approach, considering whether, in this particular case, the content of Butler’s testimony, as well as its form and context, make it speech involving a matter of public concern. After applying such an analysis here, we conclude that Butler’s testimony during the child custody proceeding was not on a matter of public concern. Although Butler’s testimony involved a matter of great significance to the private parties involved in the proceeding, it did not relate to any matter of political, social or other concern of the larger community.

I. BACKGROUND

At the motion-to-dismiss stage, we accept as true all of Butler’s well-pled factual allegations and view them in the light most favorable to him. See Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018). Butler alleged the following: He works for the San Miguel County Road and Bridge Department. On September 1, 2016, the County promoted Butler to a district supervisor position. Six days later, on September 7, "Butler testified in a child custody hearing in Montrose County ... involving his sister-in-law and her ex-husband, who is also an employee of the San Miguel County, Road and Bridge Department." (Aplt. App. 10 ¶ 15.) "Butler was asked to testify as a character witness on behalf of his sister-in-law"; he "would have been required to testify pursuant to a subpoena had he not agreed to testify ...." (Id. ¶¶ 16-17.) "At the hearing, Butler was asked, among other things, about the hours of operation for the San Miguel County Road and Bridge Department." (Id. ¶ 18.) He "responded truthfully to the question based upon his own personal knowledge." (Id. ¶ 19.) "At the hearing, Butler neither stated nor implied that he was testifying on behalf of the County." (Id. ¶ 20.)

Almost two weeks later, Mike Horner, who was San Miguel County’s Road and Bridge Director, and Kristl Howard, the County’s Human Resources Director, "conducted an investigation into Butler’s testimony at the hearing." (Id. 10 ¶ 22.) "Following the investigation, Horner and Howard gave Butler a Written Reprimand and demotion."² (Id. ¶ 23.)

Butler sued the two County directors who demoted him, Horner and Howard, under 42 U.S.C. § 1983, alleging that they violated Butler’s right to free speech under the First and Fourteenth Amendments by demoting him for testifying truthfully at the custody hearing. See Janus v. Am. Fed'n of State, Cty., & Mun. Employees, Council 31, ––– U.S. ––––, 138 S.Ct. 2448, 2463, 201 L.Ed.2d 924 (2018) (noting First Amendment applies to states through Fourteenth Amendment). Defendants moved to dismiss this claim under Fed. R. Civ. P. 12(b)(6). The district court granted that motion, ruling that Butler had failed to allege a First Amendment violation because his triggering speech was not on a matter of public concern, and the court dismissed with prejudice Butler’s § 1983 claims against the two individual Defendants. It is that decision that Butler challenges on appeal.³

II. DISCUSSION

We review de novo the district court’s decision to grant Defendants' Rule 12(b)(6) motion to dismiss and in doing so we accept as true all well-pled factual allegations, viewing those facts in the light most favorable to Butler. See Straub, 909 F.3d at 1287. "To withstand a motion to dismiss, a complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible on its face.’ " Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

The individual Defendants, Horner and Howard, sought dismissal of Butler’s First Amendment claim, asserting they were each entitled to qualified immunity. To overcome Defendants' qualified-immunity defense, Butler had to allege that (1) the individual Defendants violated Butler’s constitutional rights, and that (2) those rights were clearly established at the time of the alleged violation. See Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ; Doe v. Woodard, 912 F.3d 1278 (10th Cir. 2019). A court can consider these two inquiries in any order. See Pearson, 555 U.S. at 236, 129 S.Ct. 808. In this case, the district court granted Defendants' motion to dismiss at the first qualified-immunity inquiry, holding Butler had failed to allege a First Amendment violation.

In reaching that decision, the district court applied the five-part Garcetti/ Pickering analysis, which asks:

(1) whether the speech was made pursuant to an employee’s official duties; (2) whether the speech was on a matter of public concern; (3) whether the government’s interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff’s free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same employment decision in the absence of the protected conduct.

Bailey v. Indep. Sch. Dist. No. 69, 896 F.3d 1176, 1181 (10th Cir. 2018); see also Lane v. Franks, 573 U.S. 228, 236-37, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014). "In general, the first three prongs are legal issues to be decided by the court and the last two prongs are factual issues left to the factfinder." Bailey, 896 F.3d at 1181.

In this case, Defendants conceded the first Garcetti/ Pickering inquiry, that Butler testified as a private citizen, but moved to dismiss arguing that Butler had failed to allege adequate facts to succeed on either the second or third Garcetti/ Pickering inquiry. The district court granted the motion to dismiss, ruling at the second Garcetti/ Pickering step that Butler had failed to allege that his testimony was on a matter of public concern.

"Speech involves matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." Lane, 573 U.S. at 241, 134 S.Ct. 2369 (internal quotation marks omitted); see also Bailey, 896 F.3d at 1181 ("Matters of public concern are issues of interest to the community, whether for social, political, or other reasons." (internal quotation marks omitted)). For example, "[s]tatements revealing official impropriety usually involve matters of public concern." Trant v. Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014) (internal quotation marks omitted); see also Eisenhour v. Weber Cty., 744 F.3d 1220, 1228 (10th Cir. 2014) ("Speech involves a public concern when the speaker intends to bring to light actual or potential wrongdoing or breach of public trust by a public official or to disclose any evidence of corruption, impropriety, or other malfeasance within a governmental entity." (internal quotation marks, alterations omitted)). Speech aimed at "air[ing] grievances of a purely personal nature" is generally not on a matter of public concern. Lighton v. Univ. of Utah, 209 F.3d 1213, 1225 (10th Cir. 2000) ; see also Morris v. City of Colo. Springs, 666 F.3d 654, 661 (10th Cir. 2012) ("Speech relating to internal personnel disputes and working conditions ordinarily" does not "address[ ] matters of public concern." (internal quotation marks, alteration...