Thomas v. City of Blanchard

• Decision Date: 03 December 2008
• Docket Number: No. 07-6197.,07-6197.
• Citation: 548 F.3d 1317
• Parties: Ira THOMAS, Plaintiff-Appellant, v. CITY OF BLANCHARD, Bill Edwards, Monte Ketchum and Tom Sacchieri, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

548 F.3d 1317

Ira THOMAS, Plaintiff-Appellant, v. CITY OF BLANCHARD, Bill Edwards, Monte Ketchum and Tom Sacchieri, Defendants-Appellees.

No. 07-6197.

United States Court of Appeals, Tenth Circuit.

December 3, 2008.

Mark Hammons, Hammons & Associates (Tamara L. Gowens, with him on the brief), Oklahoma City, OK, for Plaintiff-Appellant.

David W. Lee, Lee & Gooch, P.C. (Ambre C. Gooch, with him on the brief), Oklahoma City, OK, for Defendant-Appellees City of Blanchard, Bill Edwards and Monte Ketchum.

David W. Kirk, Lytle, Soulé & Curlee, P.C. (Robert Ray Jones, Jr., with him on the brief), for Defendant-Appellee Tom Sacchieri.

Before MURPHY, McKAY and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Plaintiff-Appellant Ira Thomas was fired from his job as building code inspector for the City of Blanchard, Oklahoma, after he discovered in the City Clerk's office a signed and completed certificate of occupancy for a home constructed by a local builder—who is also the mayor—although Mr. Thomas had not yet made the final inspection of the home or approved issuance of the certificate. Suspecting illegality, Mr. Thomas responded forcefully (and maybe even inappropriately; that is a disputed issue) by storming into a meeting to denounce the certificate, shouting at the City Clerk, threatening to report the matter to the Oklahoma State Bureau of Investigation ("OSBI"), and eventually following through on the threat. Mr. Thomas sued the City and various individual defendants, including the mayor, claiming his discharge was in retaliation for his speech—primarily, his reporting the matter to the OSBI—and therefore in violation of the Free Speech Clause of the First Amendment.

The principal issue on appeal is whether Mr. Thomas's report to the OSBI was made pursuant to his professional duties and therefore outside the scope of First Amendment protections under Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Because we conclude that his speech was not made pursuant to his professional duties and was therefore constitutionally protected, we address the other issues relevant to when a public employee's discharge violates the First Amendment: whether the speech involved a matter of public concern, whether the government's interest outweighed the employee's free speech rights, whether the speech was a motivating factor in the discharge, and (pertinent only to the mayor's appeal) whether the mayor personally participated in the decision to discharge Mr. Thomas. As to all these questions, our review is on appeal from a grant of summary judgement to the defendants; accordingly, the question is whether the evidence in the record, interpreted in the light most favorable to the plaintiff, would permit a reasonable jury to find a constitutional violation. We reverse summary judgment in favor of the defendants, except on the question of the mayor's personal responsibility.

I. FACTUAL BACKGROUND

Before the discharge challenged in this case, Mr. Thomas was the building code inspector for the City of Blanchard, although he also had other duties. As building code inspector, Mr. Thomas would conduct a final inspection of new homes when construction was complete. If a home passed its final inspection, the builder would receive a certificate of occupancy ("certificate"). Certificates are signed both by the housing inspector and by the City Clerk, Camille Dowers. The builder had to go to City Hall to pick up the certificate of occupancy. Mr. Thomas, in his capacity as housing inspector, had no power to make policy, but was merely expected to "carry out the policies of the city."

According to the "typical practice," builders would call ahead to request an inspection and Mr. Thomas would conduct the inspection. When the inspection was finished, Mr. Thomas would phone City Hall to report the results; he would also prepare a written report noting whether the house had passed inspection or not. It was common practice for Mr. Thomas and Ms. Dowers, the City Clerk, to "pre-sign" a number of blank certificates, so that when Mr. Thomas called with the news of a successful final inspection she could fill in the identifying information (owner, address) and make the certificate available immediately to the builder.

On Friday, April 14, 2005, Mr. Thomas noticed that there was a completed, signed certificate (including both his signature and Ms. Dowers') in the City Clerk's office for a house on 1118 Houser Lane, seeming to indicate that the house had been passed. The builder of this house was Tom Sacchieri, the Mayor of the City of Blanchard. Mr. Thomas had not yet performed a final inspection on the house, so the certificate, Mr. Thomas knew, had been filled in prematurely. Mr. Thomas told both Mr. Edwards and Ms. Dowers that the house on Houser Lane had not yet been "finalled out" and that the certificate was no good. Later Friday afternoon, Mr. Thomas called Ms. Dowers and asked that she tear up the certificate for the house on Houser Lane.

Mr. Thomas returned to city hall on the Monday following the weekend, wearing a recording device. He interrupted a meeting where the City Manager, Bill Edwards, and Mr. Thomas's supervisor, Monte Ketchum, were present, and told Mr. Edwards that the certificate for Mr. Sacchieri's house was false and that he wanted his name off of it. Mr. Thomas began asking Mr. Edwards whether he "realize[d] it's against the law to be handing out" false certificates, but Mr. Edwards stopped him, saying he didn't need to be "lecture[d]" by Mr. Thomas. Mr. Thomas accused Mr. Edwards of giving the certificate to Mr. Sacchieri, to which Mr. Edwards responded: "[T]hat's a goddamn lie.... It is in my hands."

The remaining key parts of the dialogue, although to some extent obscured by inaudible words and passages, are as follows:

BILL EDWARDS: (inaudible)

IRA THOMAS: Okay. That's fine. If that's—if that's what you want to do. I'm going—I'm going to the OSBI [Oklahoma State Bureau of Investigation].

BILL EDWARDS: Okay.

IRA THOMAS: I'm—I'm going to the OSBI, and I'm going to—I'm going to— I'll talk to them about it.

. . .

IRA THOMAS: I'm not making demands. I'm just saying that I'll make— this is against the law, against the law.

BILL EDWARDS: I understand.

IRA THOMAS: And my name is on that document by false pretenses.

BILL EDWARDS: I tell you what—

IRA THOMAS: If you tear that document up right now, just tear it up in front of me, everything—everything will be good.

BILL EDWARDS: No, everything won't be good. But I'm gonna tear it up anyway.

Mr. Edwards then handed the document to Mr. Thomas, who ripped it up. Mr. Thomas apparently left City Hall, but re-entered through another door. He then entered Ms. Dowers' office and demanded that she hand over to him all of the blank pre-signed certificates. Ms. Dowers screamed. Later that day, at the urging of Mr. Ketchum, Mr. Thomas returned to city hall and apologized to Mr. Edwards and Ms. Dowers for his "tone of voice."

Mr. Thomas conducted the final inspection of the 1118 Houser Lane house the same day. He concluded that there were several minor deficiencies that had to be corrected before he would approve the house for a certificate of occupancy. Mr. Sacchieri, who was present at the inspection, told Mr. Thomas that he had "got to be kidding" that the house did not pass. But he made the repairs, and Mr. Thomas approved the house the next day, April 18.

Earlier that day, Mr. Thomas had in fact contacted the OSBI, although Mr. Ketchum, Mr. Edwards, and Mr. Sacchieri had no knowledge of this. The OSBI told him that he needed to contact the sheriff's department first, which he did. He eventually contacted Lydia Williams of the OSBI, but did not actually meet with her until after he was fired. Mr. Thomas was terminated on April 21. Mr. Ketchum made the decision to fire Mr. Thomas, and notified Mr. Edwards before he did so. According to the record evidence, Mr. Sacchieri learned that Mr. Thomas had been fired approximately ten days later.

Mr. Thomas filed a 42 U.S.C. § 1983 complaint against the city, Mr. Edwards, Mr. Ketchum, and Mr. Sacchieri in Oklahoma District Court, alleging that he had been fired from his job for the exercise of his First Amendment rights. The complaint specifically alleged that in making his reports to the OSBI and the sheriff's office, Mr. Thomas was not "fulfilling any requirement of his job no[r] acting pursuant to a directive imposed by his job description, assigned duties or a directive from a supervising official."

The defendants moved for summary judgment, arguing that the undisputed evidence showed that Mr. Thomas's speech had been uttered pursuant to his "official duties" and was therefore not protected by the First Amendment. They further argued that the undisputed evidence showed that Mr. Thomas's speech was not the cause of his termination, that the interests of the city qua employer outweighed Mr. Thomas's interest in his speech, and that Mr. Edwards and Mr. Ketchum were entitled to qualified immunity. Mr. Sacchieri filed a separate motion for summary judgment, arguing (in addition to the above) that he had not "personally participated" in the firing of Mr. Thomas and was therefore not liable. In his response, Mr. Thomas stated that he believed he would have been subject to criminal liability if he had "failed to protest and report the generation of a fraudulent certificate of occupancy."

The district court held that Mr. Thomas's speech—specifically, the report to the OSBI and his threat to make a report— was not protected by the First Amendment because it was made "pursuant to his official duties," and that, even if the speech was protected, his claim nevertheless failed "as a matter of law because [Mr. Thomas] cannot establish the requisite element of causation to support his retaliation claim." The city, Mr. Edwards, and Mr. Ketchum were granted summary judgment. Mr. Sacchieri was found not...