# Leverington v. City of Colorado Springs

> Court of Appeals for the Tenth Circuit · May 5, 2011 · 643 F.3d 719

URL: https://www.frixlaw.com/law-library/cases/9441527

## Case

- **Full name:** Miriam LEVERINGTON, Plaintiff-Appellant, v. CITY OF COLORADO SPRINGS, Doing Business as Memorial Health System, and Duaine Peters, in His Individual Capacity, Defendants-Appellees
- **Court:** Court of Appeals for the Tenth Circuit
- **Decided:** May 5, 2011
- **Citations:** 643 F.3d 719; 32 I.E.R. Cas. (BNA) 260; 2011 U.S. App. LEXIS 9187; 2011 WL 1678070
- **Precedential status:** Published
- **Opinion:** Concurrence by Hartz
- **Judges:** Hartz, Tacha, Ebel
- **Cited by:** 167 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9441527

## How later opinions describe it (automated extraction)

- explaining that “after Garcetti, it is apparent that the Pickering analysis of freedom of speech retaliation claims is a five step inquiry” that will be referred to as “the Garcetti/Pickering analysis” (internal quotation marks omitted)
- explaining that Garcetti “expanded on the Pickering test by adding a fifth, threshold inquiry that seeks to determine whether the speech at issue was made pursuant to the public employee’s official duties”
- applying “Worrell test [] to retaliation claims in which the defendant is not the plaintiff’s employer and when there is no contractual relationship between them”

## Opinion text

HARTZ, Circuit Judge,
concurring:
I concur in the result and join all but § III(B) of Judge Ebel’s opinion. With respect to § III(B), I agree that Officer Peters is entitled to qualified immunity because at the time of the incident the law was not clearly established that the First Amendment prohibited him from retaliating when Ms. Leverington’s speech was not on a matter of public concern. I do, however, disagree with the suggestions in the opinion (1) that the First Amendment does not prohibit a police officer from retaliating against a public employee unless that employee’s speech was on a matter of public concern, even when it is only fortuitous that the victim of the retaliation is a public employee; and (2) that there was insufficient evidence that Peters’s action caused Leverington to lose her job, see Staub v. Proctor Hosp., — U.S.-, 131 S.Ct. 1186, 1192 , 179 L.Ed.2d 144 (2011) (“[I]t is axiomatic under tort law that the exercise of judgment by the decisionmaker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm.”)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9441527. Public record. Not legal advice.