Avant v. Doke

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

GARY A. AVANT, )

)

)

)

Plaintiff, )

)

v. ) Case No. CIV-20-067-RAW

)

KEN DOKE, individually and in his )

official capacity as a County Commissioner )

for Muskogee County, )

)

)

)

)

Defendant. )

ORDER

Before the court are the motion of the plaintiff for partial summary judgment and the

motion of the defendant for summary judgment. The factual background has been set forth

in the Tenth Circuit opinion remanding this case “for further development of the record.”

Avant v. Doke, 2022 WL 2255699, *4 (10th Cir.2022). The court incorporates by reference

the section marked “A. Factual History.” Id. at *1.

Summary judgment is appropriate if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law. Rule 56(a)

F.R.Cv.P. The court views all evidence and any reasonable inferences that might be drawn

therefrom in the light most favorable to the non-moving party. Wahlcometroflex, Inc. v.

Westar Energy, Inc., 773 F.3d 223, 226 (10th Cir.2014). Cross-motions for summary

judgment are to be treated separately; the denial of one does not require the grant of another.

Ultra Clean Holdings, Inc. v. TFG-California, L.P., 534 Fed.Appx. 776, 780 (10th Cir.2013).

When the parties file cross-motions for summary judgment, the court is entitled to assume

that no evidence needs to be considered other than that filed by the parties, but summary

judgment is nevertheless inappropriate if disputes remain as to material facts. Id.1

The plaintiff alleges that defendant, in terminating plaintiff’s employment, violated

plaintiff’s right to free speech under the First Amendment. “To account for the complexity

associated with the interplay between free speech rights and government employment, this

Court’s decisions in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty.,

391 U.S. 563 (1968), Garcetti [v. Ceballos] 547 U.S. 410 [(2006)] , and related cases suggest

proceeding in two steps. The first step involves a threshold inquiry into the nature of the

speech at issue. If a public employee speaks ‘pursuant to [his or her] official duties,’ this

Court has said the Free Speech Clause generally will not shield the individual from an

employer’s control and discipline because that kind of speech is – for constitutional purposes

at least – the government’s own speech.” Kennedy v. Bremerton School Dist., 142 S.Ct.

2407, 2423 (2022)(citation omitted).

“At the same time and at the other end of the spectrum, when an employee ‘speaks as

a citizen addressing a matter of public concern, ‘our cases indicate that the First Amendment

may be implicated and courts should proceed to a second step. At this second step, our cases

1The two motions are true cross-motions only as to plaintiff’s official capacity claim.

2

suggest that courts should attempt to engage in ‘a delicate balancing of the competing

interests surrounding the speech and its consequences.’ Among other things, courts at this

second step have sometimes considered whether an employee’s speech interests are

outweighed by “‘the interest of the State, as an employer, in promoting the efficiency of the

public services it performs through its employees.’” Id. (citation omitted).

As the Tenth Circuit notes, however, “[t]his is not a typical public employee speech

case. The employer, Commissioner Doke, fired Mr. Avant for perceived, not actual, speech,

and it is not clear whether and how each of the Garcetti/Pickering elements should apply to

a perceived speech claim.” Avant, 2022 WL 2255699, *4 (10th Cir.2022).2 “[Heffernan v.

City of Paterson, 578 U.S. 266 (2016)] recognized a public employee’s First Amendment

protection from retaliation for perceived speech.” Id. at *73

2Defendant argues that there is currently no pending free speech claim, because plaintiff never filed

an amended complaint. (#129 at 8-10; #131 at 5). This court rejected this view in its subsequent order

(#133) denying plaintiff’s motion to amend as moot or unnecessary. See also Avant, 2022 WL 2255699, *3

(10th Cir.2022)(“The court did not request Mr. Avant to amend the complaint. On appeal, Commissioner

Doke does not adequately develop an argument that this expansion of the First Amendment claim or lack of

amendment was error”). Moreover, in saying “this is not a typical public employee speech case,” the

appellate court acknowledged that a speech claim was before the court.

3In Heffernan, a police officer was demoted after he was seen carrying a yard sign for a political

opponent of the city’s incumbent mayor. His demotion was based on a factual mistake in that his supervisors

believed he was involved in the opponent’s campaign. Plaintiff denied such involvement and asserted he

was merely picking up a yard sign as an errand for his bedridden mother. The Supreme Court (analogizing

to Waters v. Churchill, 511 U.S. 661 (1994)) held that the officer could nevertheless bring a claim alleging

the violation of a constitutional right that he conceded he did not exercise. “[T]he Supreme Court held that

the employer’s reason for taking an adverse employment action against an employee determines whether

there has been a First Amendment violation regardless of whether the employee engaged in protected

activity.” Avant, at *6. In Bird v. West Valley City, 832 F.3d 1188 (10th Cir.2016), “the public employer

mistakenly believed the employee had made an anonymous call to a reporter that led to a newspaper article

portraying the employer in a negative light.” Avant at *7. The Tenth Circuit held that “the employee could

prevail on her First Amendment claim even if she did not make the call but the employer ‘believed she was

engaged in a constitutionally protected activity.’” Id.

3

Therefore, the matter is before this court “for development and consideration of

whether the full Garcetti/Pickering test applies in a perceived speech case and, if not, how

it should be appropriately tailored.” Id. at *4.4 Defendant testified he fired plaintiff primarily

based on the following: (1) the Rollands reported that plaintiff was telling people in the

community that a road project had been designed so a new fence could be built on Mr.

Rolland’s property at County expense; (2) complaints (from an unidentified source) that

plaintiff was telling people in the community that a County employee who was a registered

sex offender had been assigned to work near a school. See Avant, 2022 WL 2255699, *1

(10th Cir.2022). See also #39-2 at page 27 of 32 in CM/ECF pagination, ll.1-4.

The Pickering/Garcetti analysis employs a five-part test. The factors are: (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. Avant, at *4. The first three

4In an odd footnote, plaintiff asserts that defendant has done an about-face and defendant is now

contending plaintiff actually did make the statements in question, and thus the application of

Garcetti/Pickering to a case of perceived speech is moot. (#130 at n.6). This is contrary to the court’s

reading of the briefs and, more importantly, contrary to the Tenth Circuit mandate. In connection with the

present briefing, plaintiff continues to assert: “I did not spread any rumors on any subjects.” (#130-15, ¶4).

Defendant asks that plaintiff’s declaration be excluded as post-discovery (#131 at 3). The court only relies

on the quoted sentence, the subject matter of which has been addressed in discovery.

4

elements concern whether the speech is protected and are issues of law for the court to

decide. The last two concern whether an adverse action was taken because of the protected

speech and are factual issues typically decided by the jury. Id. “In a typical public employee

free speech case, the plaintiff must establish all five elements.” Id.

Having set out this general background, however, the court notes that defendant’s

motion asserts the defense of qualified immunity. This requires a different analysis,

including the burden of proof. Where a defendant asserts qualified immunity at the summary

judgment stage, the burden shifts to the plaintiff to show that: (1) the defendant violated a

constitutional right, and (2) the constitutional right was clearly established. Kapinski v. City

of Albuquerque, 964 F.3d 900, 905 (10th Cir.2020). “This is a heavy burden. If the plaintiff

fails to satisfy either prong of the inquiry, the court must grant qualified immunity.”

Carabajal v. City of Cheyenne, 847 F.3d 1203, 1208 (10th Cir.2017).5

Tenth Circuit authority also directs that the defense be addressed first. “If, and only

if, the plaintiff meets this two-part test does a defendant bear the traditional burden of the

movant for summary judgment.” Kapinski, 964 F.3d at 905. The court may address these

two inquiries in any order. McCowan v. Morales, 945 F.3d 1276, 1282 (10th Cir.2019). If

5Still further, when the qualified immunity inquiry turns on a subjective element, such as motive, the

analysis is modified slightly. McBeth v. Himes, 598 F.3d 708, 724 (10th Cir.2010). The defendant must do

more than merely raise the qualified immunity defense; he must make a prima facie showing of the objective

reasonableness of the challenged conduct. Id. The parties have not addressed this aspect, and the court is

persuaded the record does not establish such a prima facie case, for reasons to be discussed.

The district court in Bird v. West Valley City, 2017 WL 4326485 (Utah 2017), described this as an

“initial requirement before the court embarks on the traditional qualified immunity inquiry.” Id. at *9.

Under the circumstances, this court has nevertheless engaged in the traditional discussion.

5

the plaintiff fails to satisfy either test, the court must grant qualified immunity. Id.6 The

Tenth Circuit discussed both prongs in its opinion, Avant, at **3-6. and therefore this court

will as well.

The court turns to the claim’s elements. As to the first, speech is made pursuant to

official duties if it is generally consistent with the type of activities the employee was paid

to do. Wright v. Kay County Justice Faciliites Auth., 2023 WL 2822122, * 5 (10th Cir.2023).

Defendant concedes the first element. “Defendant has never presented any argument that the

perceived speech was made pursuant to Plaintiff’s duties as a truck driver.” (#131 at 6).

Therefore, under this element, plaintiff spoke as a private citizen.

The parties dispute the second element. Matters of public concern are those of interest

to the community, whether for social, political, or other reasons. Lamb v. Montrose Co.

Sheriff’s Office, 2022 WL 487105, *6 (10th Cir.2022). Courts construe “public concern” very

narrowly. Id. In determining whether the speech was about a matter of public concern, the

court must consider the content, form, and context of the speech as revealed by the whole

record. Avant, at *4. Context involves determining whether the employee’s primary purpose

6Qualified immunity “is available only in suits against officials sued in their personal capacities, not

in suits against governmental entities or officials sued in their official capacities.” Starkey ex rel. A.B. v.

Boulder Cnty. Soc. Servs., 569 F.3d 1244, 1263 n.4 (10th Cir.2009). Defendant is sued in both capacities in

this litigation. The court previously granted (#128) defendant’s motion to strike certain deadlines pending

the court’s resolution of his qualified immunity defense.

6

was to raise a matter of public concern rather than to air a personal dispute. Id. (emphasis

in original).7

In an ordinary case of this type, “[i]n drawing the thin line between a public

employee’s speech which touches on matters of public concern, and speech from the same

employee which only deals with personal employment matters, [the court] looks to the

subjective intent of the speaker.” Workman v. Jordan, 32 F.3d 475, 483 (10th Cir.1994).

“But a perceived speech case, as here, presents the question of whether a modified

Garcetti/Pickering standard must apply given the inability to assess the intent of a speaker

who has not spoken.” Avant, at *4. Defendant argues that, plaintiff’s intent being

unavailable, it is Doke’s and Burgess’s understanding which controls: “Consequently, it is

Doke’s and Burgess’ understanding of the speech’s meaning and intent which determines

whether the speech was on a matter of public concern and whether a constitutional violation

occurred.” (#122 at page 19 of 32 in CM/ECF pagination). “In other words, there is no First

Amendment violation when an employer terminates an employee for speech the employer

reasonably believes was on a matter of private, not public, concern, even if that belief was

mistaken.” (#122 at page 20 of 32 in CM/ECF pagination)(emphasis added).

The defendant’s formulation is correct as written but this court has emphasized a

critical term in the sentence. As previously stated, the Court in Heffernan placed reliance on

7Oklahoma law prohibits a registered sex offender from employment on school premises. 57 O.S.

§589(A). This was not the allegation defendant perceived plaintiff to have made. Still, the perceived speech

appears to qualify as a matter of public concern, perhaps in the realm of public safety.

7

Waters v. Churchill, 511 U.S. 661 (1994). In Waters, a nurse claimed she was discharged

because she criticized the hospital’s “cross-training” policy that allowed nurses from one

department to work in another department, and that this reduced the quality of nursing care

in the hospital’s obstretrics deparmtnet. The employer received two different versions of

plaintiff’s speech; one version would have been protected under the First Amendment while

the other could permissibly have served as the basis for plaintiff’s discharge. Id. at 665-66.

The Court in Waters addressed the factual basis by which an employer makes the

decision and how a court should review the decision. The Court said: “we do not believe that

the court must apply the [First Amendment] test only to the facts as the employer thought

them to be, without considering the reasonableness of the employer’s conclusions. . . It is

necessary that the decisionmaker reach its conclusion about what was said in good faith,

rather than as a pretext; but it does not follow that good faith is sufficient.” 511 U.S. at 677.

(emphasis added). There may not always be a clear line of demarcation between the legal

and factual from the employer’s point of view.8 Of necessity, however, the court must

8Often described as a “factual” mistake is the employer’s view of the legal status of the purported

statement. “If an employment action is based on what an employer supposedly said, and a reasonable

supervisor would recognize that there is a substantial likelihood that what was actually said was protected,

the manager must tread with a certain amount of care.” Waters, 511 U.S. at 677 (emphasis added).

In describing Waters, the Supreme Court has taken account of the employer’s view of both the

factual and the legal: “The employer wrongly, though reasonably, believed that the employee had spoken

only on personal matters not of public concern, and the employer dismissed the employee for having engaged

in that unprotected speech. The employee, however, had in fact used words that did not amount to personal

‘gossip’ (as the employer believed) but which focused on matters of public concern. The Court asked

whether, and how, the employer’s factual mistake mattered.” Heffernan, 578 U.S. at 272 (emphasis added).

See also Bird, 832 F.3d at 1212 (“Heffernan clearly governs Plaintiff’s First Amendment retaliation

claim, for Plaintiff was a public employee who claims her municipal employer discharged her based on its

belief that she engaged in constitutionally protected activity.”).

8

resolve the legal question as a predicate to determining the reasonableness of the employer’s

determination. Still, an employer may be liable if it acts “out of a desire to prevent the

employee from engaging in political activity that the First Amendment protects . . . even if,

as here, the employer makes a factual mistake about the employee’s behavior.” Heffernan,

578 U.S. at 273. In Waters, the employer had to resolve two different versions of actual

speech. In Bird, the employer believed the employee leaked statements to the press (a

protected activity), which she denied.

In any event, in the case at bar, the court does not conclude the employer’s

characterization of plaintiff’s perceived speech was reasonable. Defendant asserts: “[t]he

record demonstrates that Burgess and Doke did not believe Plaintiff was trying to bring

misconduct to light, but was instead gossiping and airing personal grievances.” (#122 at

page 21 of 32 in CM/ECF pagination). Even if the court accepts this as accurate, the inquiry

is not over. In applying the Pickering/Garcetti test, the court must ascertain the factual basis

from which the employer made its decision. “[T]he Waters Court instructed lower courts to

take a deferential approach: when an employer’s decision rests on a reasonable belief about

the contents of the speech, formed after an objectively reasonable investigation of the facts

to determine what the employee actually said, then the court should not second-guess the

employer’s decision, even if the employer was wrong and the speech was entitled to

protection.” Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 470 (5th

Cir.2014)(emphasis added)(citing Waters, 511 U.S. at 677-78)).

9

The court declines to hold that defendant conducted an objectively reasonable

investigation. Most obviously, defendant discharged plaintiff under the belief that plaintiff

had uttered the speech in question. Evidently, only in this litigation has it been made known

that plaintiff denied making the statements, and the lawsuit is now one over “perceived

speech.”9 “Generally, without at least asking an employee what [he] said, an employer’s

indispensable investigation into whether an employee’s speech was protected will not be

reasonable.” Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 193 (5th Cir.2005).10

Additionally, the Tenth Circuit has come close to resolving the issue in this case as

a matter of definition: “Speech concerning potential illegal conduct by government officials

is inherently a matter of public concern.” Brammer-Hoelter v. Twin Peaks Charter Academy,

492 F.3d 1192, 1206 (10th Cir.2007). Speech involves a matter of 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. Eisenhour v. Weber Cty., 744 F.3d 1220, 1228 (10th Cir.2014).

9“Likewise, it may be unreasonable for an employer to act based on extremely weak evidence when

strong evidence is clearly available – if, for instance, an employee is accused of writing an improper letter

to the editor, and instead of just reading the letter, the employer decides what it said based on unreliable

hearsay.” Waters, 511 U.S. at 677.

10Defendant asserts a meeting took place in May 2018 during which plaintiff was told to “stop

making disparaging remarks about people in the community.” (#122 at page 11 of 32 in CM/ECF pagination,

¶15). Plaintiff admits such a meeting took place but characterized the defendant’s concern as whether

plaintiff “was calling Ken Doke a liar” and regarding material plaintiff’s son was allegedly putting on

Facebook. (#122-1 at page 23 of 41 in CM/ECF pagination). The record is unclear why plaintiff did not

inquire of Doke and Burgess about the source for plaintiff’s alleged statements or why Doke and Burgess

did not inquire if plaintiff made the specific statements for which he was (at least in part) ultimately

terminated.

10

In a case of “actual” speech, a defendant could present evidence of the plaintiff’s actual

intent and thereby rebut the presumption that speech of this type should be characterized as

a matter of public concern. Here, in a case of perceived speech, defendant has no such

recourse. Even in a perceived speech case, perhaps after conducting a formal, objective

investigation, a defendant could establish he had a reasonable belief that the perceived speech

was mere gossip. The present defendant has not done so.11

The third element is whether the employee’s interest in commenting on the issue

outweighs the interest of the state as employer. Wright v. Kay County Justice Facilities

Auth., 2023 WL 2822122, *5 (10th Cir.2023).12 Once again, there are difficulties in applying

this balancing test in a case of perceived speech. On one side of the scales, in a sense the

plaintiff has no interest, as he did not speak.13 On the other side, the only public employer

interest that outweighs the employee’s free speech interest is avoiding direct disruption, by

11Defendant also argues “the statements Burgess and Doke believed Plaintiff made were maliciously

false and Plaintiff knew them to be false.” (#122 at page 22 of 32 in CM/ECF pagination). The Tenth

Circuit has stated: “It is difficult to see how a maliciously or recklessly false statement could be viewed as

a matter of public concern.” Wulf v. City of Wichita, 883 F.2d 842, 859 n.24 (10th Cir.1989). This appears

to be another aspect of the traditional analysis which is unworkable in the realm of perceived speech.

Plaintiff did not in fact speak, so the statements cannot be “maliciously or recklessly false.”

12“Although the third element must weigh in favor of the plaintiff for the plaintiff to prevail on the

First Amendment claim, the employer bears the burden on the third element.” Duda, 7 F.4th at 912.

13 Defendant argues that “[b]ecause Defendant’s interest in restraining the speech obviously

outweighed any interest Plaintiff had in making it (since he claimed he did not even make the speech at all),

Defendant Doke in his individual capacity is entitled to summary judgment in his favor.” (#122 at page 25

of 32 in CM/ECF pagination). Such a test would mean a defendant always prevailed in a case of perceived

speech. The proper test in a case of perceived speech is presumably that, based on content alone, a plaintiff

who spoke words squarely within the realm of public concern (addressing malfeasance) would have a strong

interest.

11

the speech itself, of the public employer’s internal operations and employment relationships.

Helget v. City of Hays, Kansas, 844 F.3d 1216, 1222 (10th Cir.2017). Defendant has not

demonstrated that such took place.

Such a demonstration is understandably difficult in this case, as it requires proof that

non-existent speech was disruptive or even potentially disruptive.14 Defendant has

demonstrated vague effects such as “negative impact on employee morale” and “creating a

negative atmosphere at work.” (#122 at 24 of 32). In the court’s view, such effects do not

rise to the level of disruption. “Potential disruption” is necessarily speculative, but a method

to nip potential disruption in the bud would have been to determine whether the negative

effects were being caused by the spreading of hearsay, rather than actual speech.

If the employee’s interest outweighs that of the employer, the employee must show

(the fourth element) that his speech was a substantial factor or a motivating factor in a

detrimental employment decision. Wright, *5. Although causation is ordinarily a factual

issue for the jury, summary judgment is appropriate when there simply is no evidence in the

record from which a trier of fact could reasonably conclude the protected speech was a

motivating factor in the plaintiff’s termination. See Cypert v. Ind. Sch. Dist. No. 1-050, 661

F.3d 477, 484 (10th Cir.2011). Defendant has presented no argument in this regard, as Mr.

Doke admitted that the speech was the reason for termination.

14Trant v. Oklahoma, 754 F.3d 1158, 1166 (10th Cir.2014)(employer need not show actual

disruption). This court previously held that actual disruption must be shown because of delay in the

employment action. (#60 at 8). See Kent v. Martin, 252 F.3d 1141, 1144 (10th Cir.2001). In other words,

delay dissipates reliance on potential disruption.

12

Summary judgment is appropriate on the fifth step when any reasonable jury would

have found that the plaintiff would have been terminated even absent any desire on the

defendant’s part fo punish him in retaliation for his allegedly protected speech. Roberts v.

Winder, 16 F.4th 1367, 1383 (10th Cir.2021). At this step, the burden remains with the

defendant. Id. Defendant contends “Plaintiff was terminated as a result of an accumulation

of a number of issues regarding demeanor and performance.” (#122 at 25 of 32). The court

finds, balanced against Mr. Doke’s affirmative statement of firing plaintiff for speech, [#124-

2 at pages 26 of 32 l.21 - page 27 of 32 l.4] defendant has not established this matter clearly

enough to grant summary judgment. The fifth element is ordinarily for the trier of fact, and

that is the appropriate result here.

This court [in order #133 at 4-5] also has permitted defendant (without filing an

amended answer) to assert the affirmative defense recognized in Heffernan. This permits

discharge when a neutral policy existed and the employee’s supervisors were indeed

following it. Avant, at *5. The policy must also comply with constitutional standards. Id.15

In this regard, defendant points to #122-12, which describes “Guidelines for Appropriate

Conduct” for a Muskogee County employee.

The court finds, for purposes of the present motion, that a neutral policy existed and

that defendant was following it. Defendant argues that the policy does not prohibit speech

concerning any particular subject matter or content, but rather requires that employees

15“The Court did not explain what makes a policy comply with constitutional standards.” Duda v.

Elder, 7 F.4th 899 n.7 (10th 2021).

13

maintain harmonious relationships with the public and with fellow employees. Further, that

an employee respect the rights and feelings of others, and refrain from any behavior that

might be harmful to the employee, “your co-workers, and/or Muskogee County, or that might

be viewed unfavorably by the public at large.” The policy also prohibits “[i]nsubordination

or willful refusal to follow an order.” Finally, the policy provides that “[t]he level of severity

of any infraction is solely at the discretion of the Elected Official.”

At first blush, by analogy to a city ordinance, the policy seems unconstitutionally

broad and vague, while also conferring unfettered and standardless discretion on the

enforcing official. See City of Houston v. Hill, 482 U.S. 451 (1987). Showing respect for

the feelings of others and refraining from behavior that might be viewed unfavorably by the

public at large covers a universe of conduct.

The Court in Waters, however, stated in passing “[g]overnment employee speech

must be treated differently with regard to procedural requirements as well. For example,

speech restrictions must generally precisely define the speech they target. Yet surely a public

employer may, consistently with the First Amendment, prohibit its employees from being

‘rude to customers,” a standard almost certainly too vague when applied to the public at

large.” 511 U.S. at 673.

This court concludes, consistent with the rest of the analysis in this case, that

application of even a neutral policy take place after a proper factual basis has been

determined as the result of a reasonable investigation. It would not be proper to discharge

14

an employee for being “rude to a customer” if the employee had not in fact been rude to a

customer. For reasonable application of the policy, an investigation must determine (1)

whether the employee engaged in actual speech and (2) only then determine the content of

the speech. “Only procedures outside the range of what a reasonable manager would use

may be condemned as unreasonable.” Id. at 678.

In sum, the court finds that plaintiff has met his burden of proof as to the five

elements of the Garcetti/Pickering test and that defendant has failed to meet his burden of

proof as to the affirmative defense provided by Heffernan. Accordingly, the court finds that

the first prong of the qualified immunity inquiry, [plaintiff must show that a reasonable jury

could find facts supporting a violation of a constitutional right, Wilkins v. City of Tulsa, 33

F.4th 1265, 1272 (10th Cir.2022)] has been satisfied.

The second prong is that plaintiff must show that the right was clearly established at

the time of the violation. Id. In remanding, the Tenth Circuit “conclud[ed] that a right to be

free of retaliation for perceived speech was clearly established when Commissioner Doke

fired Mr. Avant in November 2018.” Avant, at *7. This statement, however, was in

connection with the argument that Heffernan was limited to claims of political activity and

did not extend to claims of free speech. The appellate court made clear that this court was

to engage in additional analysis.

In the case at bar there is some overlap between the discussion of the prongs of

qualified immunity inasmuch as the Garcetti/Pickering elements also bear on the merits of

15

whether there was a constitutional violation (i.e., the first prong).16 In remanding, the Tenth

Circuit said “[t]he underdeveloped record raises questions about the district court’s treatment

of prong two of qualified immunity.” Avant, at *5. This court cited a broad, general

statement in Casey v. West Las Vegas Independent School District, 473 F.3d 1323, 1333-34

(10th Cir.2007) as satisfying the “clearly established” prong. On interlocutory appeal, the

Tenth Circuit has strongly hinted that this was insufficient. Rather, as to the

Garcetti/Pickering elements, the Tenth Circuit has taken “an element-by-element approach

to the second prong of the qualified immunity analysis with respect to both elements one and

two.” Avant, at *5. This court was directed to consider “whether an element-based approach

is necessary at prong two.” Id. at *6. This court concludes that it is.17 In other words, it is

plaintiff’s burden to show the law was clearly established with respect to both elements one

and two.

“A clearly established right is one that is sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.” Mullenix v. Luna,

7, 11 (2015). “A Supreme Court or Tenth Circuit decision on point or the weight of authority

from other courts can clearly establish a right.” A.N. ex rel. Ponder v. Syling, 928 F.3d 1191,

1197 (10th Cir.2019). The precedent is considered on point if it involves materially similar

16See Knopf v. Williams, 884 F.3d 939, 958 (10th Cir.2018)(Ebel, J., dissenting).

17“A general test defining the elements of constitutional violation, such as the Garcetti/Pickering test,

will not provide clearly established law in anything but ‘an obvious case.’” Bailey v. Indep. Sch. Dist. No.

69, 896 F.3d 1176, 1184 (10th Cir.2018). This passage is quoted in Avant at *6.

16

conduct or applies with obvious clarity to the conduct at issue. Lowe v. Raemisch, 864 F.3d

1205, 1208 (10th Cir.2017)(emphasis and citations omitted). “[A] case directly on point” is

not necessary if “existing precedent [has] placed the statutory or constitutional question

beyond debate.” White v. Pauly, 580 U.S. 73, 79 (2017). “General statements of the law can

clearly establish a right for qualified immunity purposes if they apply with obvious clarity

to the specific conduct in question.” Halley v. Huckaby, 902 F.3d 1136, 1149 (10th

Cir.2018). Plaintiff need not show the very act in question previously was held unlawful.

Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir.2016).

In a public employee speech case, courts must not define clearly established law at a

high level of generality. Instead, the clearly established law must be particularized to the

facts of the case. Avant at *6.

Defendant conceded the first element as a matter of fact. Defendant has also made

no argument against finding this element clearly established as a matter of law at the time of

the litigated events. Plaintiff also makes this point. (#130 at page 30 of 32 in CM/ECF

pagination). The court finds Doke could not have reasonably believed, at the time he fired

plaintiff, that he could fire an employee for making statements to outside community

members regarding possible malfeasance on the part of the County under the belief that

plaintiff spoke as part of his official job duties. See Knopf, 884 F.3d at 949. Plaintiff has

met his burden to show that the law was clearly established with respect to the first element.

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Turning to the second element, the court finds that plaintiff has met his burden here

as well. As stated, it is clearly established that speech disclosing illegal conduct by

government officials is inherently a matter of public concern. Rogers v. Riggs, 71 F.4th

1256, 1260 (10th Cir.2023); see also Lee v. Nicholl, 197 F.3d 1291, 1296 (10th

Cir.1999)(public employees’ speech alleging a danger to public health or safety is protected

by the First Amendment).

Defendant asserts: “Even if this Court finds that Defendant Doke could have violated

Plaintiff’s First Amendment rights, certainly there was no precedent squarely governing such

that it is beyond debate that a constitutional violation occurred. Considering the

particularized facts of this case specific to Defendant Doke and the qualified immunity

inquiry as to him, there is no published decision of the United States Supreme Court or the

Tenth Circuit Court of Appeals which would have placed Defendant Doke on notice that his

acts or omissions with respect to Plaintiff were in violation of Plaintiff’s clearly established

constitutional rights.” (#122 at page 17 of 32 in CM/ECF pagination).

As previously discussed, defendant asserts: “[t]he record demonstrates that Burgess

and Doke did not believe Plaintiff was trying to bring misconduct to light, but was instead

gossiping and airing personal grievances.” (#122 at page 21 of 32 in CM/ECF pagination).

Also, “there is no decision which has recognized a First Amendment violation for

terminating an employee in part based on a mistaken belief the employee was engaging in

an activity which the employer thought was not constitutionally protected. In fact,

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established law says the First Amendment is not violated in that situation.” (#131 at

10)(emphasis in original)(citations omitted). On the contrary, the Supreme Court in Waters

said that cited cases “establish a basic First Amendment principle: Government action based

on protected speech may under some circumstances violate the First Amendment even if the

government actor honestly believes the speech is unprotected.” 511 U.S. at 669.

In discussing Waters, the Court in Heffernan described it thus: “In that case the Court

did consider the consequences of an employer mistake. The employer wrongly, though

reasonably, believed that the employee had spoken only on personal matters not of public

concern, and the employer dismissed the employee for having engaged in that unprotected

speech. The employee, however, had in fact used words that did not amount to personal

‘gossip’ (as the employer believed) but which focused on matters of public concern. . . .In

a word, it was the employer’s motive, and in particular the facts as the employer reasonably

understood them, that mattered. In Waters, the employer reasonably but mistakenly thought

that the employee had not engaged in protected speech.” 578 U.S. at 272 (emphasis in

original). In the case at bar, the court has found that the defendant unreasonably and

mistakenly thought that the plaintiff had not engaged in protected speech.

Even when considering whether the law was clearly established, the court must view

the facts in the light most favorable to the plaintiff. Estate of Smart by Smart v. City of

Wichita, 951 F.3d 1161, 1176 (10th Cir.2020). As it did in its first-prong analysis, the court

finds that a determinative analytical word has not been addressed. “[Defendant] is entitled

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to qualified immunity if a reasonable administrator could have believed that Plaintiff was

motivated primarily by personal grievance. This belief may have been wrong, but so long

as the error was reasonable, he is immune.” Singh v. Cordle, 936 F.3d 1022, 1036 (10th

Cir.2019)(emphasis added). In the present context, “reasonableness” reflects reliance upon

a proper investigation.

In Waters v. Churchill, 511 U.S. 663 (1994), the Court stated: “Applying the

foregoing to this case, it clear that if petitioners really did believe Perkins-Graham’s and

Ballew’s story, and fired Churchill because of it, they must win. Their belief, based on the

investigation they conducted, would have been entirely reasonable.” Id. at 679-680

(emphasis added). Again, in the case at bar the record does not reflect an investigation, and

under clearly established law the discharge was therefore unreasonable and not a basis for

qualified immunity. An investigation was also necessary in this case because under Tenth

Circuit precedent, “[s]peech concerning potential illegal conduct by government officials is

inherently a matter of public concern.” Brammer-Hoelter v. Twin Peaks Charter Academy

2 F.3d 1192, 1206 (10th Cir.2007).

Also, this court returns to McBeth v. Himes, 598 F.3d 708 (10th Cir.2010), discussed

in footnote 5 of this order. Under the facts of this case, a defendant who does not conduct

the investigation required by Waters cannot make a prima facie showing of the objective

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reasonableness of the challenged conduct. The investigation is the essence of objective

reasonableness. Qualified immunity fails on this basis as well.18

As stated previously, if the plaintiff defeats qualified immunity, the defendant bears

the traditional burden of the movant for summary judgment – showing that there is no

genuine dispute as to any material fact and that he is entitled to judgment as a matter of law.

See Rojas v. Anderson, 727 F.3d 1000, 1003 (10th Cir.2013); Rule 56(a) F.R.Cv.P. In its

discussion as to prong one of qualified immunity, the court has determined that a reasonable

jury could find for plaintiff on all five elements of the Garcetti/Pickering test. Therefore,

defendant is not entitled to judgment as a matter of law.

Plaintiff also sues defendant in his official capacity, and both parties have moved for

summary judgment as to this claim. As previously stated, qualified immunity is not an

available defense to an official capacity suit. A suit against a local government official in

his official capacity is treated as a suit against the local government entity itself. See Cox v.

Glanz, 800 F.3d 1231, 1254 (10th Cir.2015). To establish liability against the County,

plaintiff must show (1) that Commissioner Doke committed a constitutional violation and (2)

that a Muskogee County policy or custom was the moving force behind the constitutional

deprivation. See Campbell v. City of Spencer, 777 F.3d 1073, 1077 (10th Cir.2014).

18This court notes that McBeth is not cited as a matter of course by the Tenth Circuit in First

Amendment retaliation cases where qualified immunity is asserted. The decision is cited in the unpublished

decision Bird v. Regents of New Mexico State Univ., 619 Fed.Appx. 733, 744 (10th Cir.2015). This court

must follow controlling precedent as best it can.

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A municipal policy or custom may take the form of a decision by employees with final

policy-making authority. Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1283 (10th

Cir.2019). A county commissioner has final decision-making authority over the hiring and

firing of employees within that district. See Henry v. Okla. Cty. Bd. of Cty. Comm’rs, 182

F.3d 931 (10th Cir.1999). Defendant concedes the point (#11 at 2 ¶15).

As to plaintiff’s motion, when the moving party has the burden of proof at trial, “a

more stringent summary judgment standard applies.” Pelt v. Utah, 539 F.3d 1271, 1290 (10th

Cir.2008). To obtain summary judgment on its own claim or defense, a movant “must

establish, as a matter of law, all essential elements of the issue before the nonmovant can be

obligated to bring forward any specific facts alleged to rebut the movant’s case.” Id.

The court finds that plaintiff has made a sufficient record to resist defendant’s motion

for summary judgment as to the official capacity claim, but he has not met the Pelt standard

such that his own motion for partial summary judgment should be granted. The official

capacity claim will also be submitted to the jury.

It is the order of the court that the motion of the plaintiff for partial summary

judgment (#124) is hereby denied. The motion of defendant for summary judgment (#122)

is also hereby denied.

ORDERED THIS 26th DAY OF JULY, 2023.

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