Professional Documents
Culture Documents
Filed: Patrick Fisher
Filed: Patrick Fisher
PUBLISH
MAR 11 1998
PATRICK FISHER
Clerk
RICHARD C. LYTLE,
Plaintiff-Appellant,
v.
CITY OF HAYSVILLE, KANSAS, a
municipal corporation, and JAMES
EARL KITCHINGS,
No. 96-3197
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 93-CV-1322-KHV)
Jack Focht, Focht, Hughey & Calvert, L.L.C., Wichita, Kansas, for PlaintiffAppellant.
Alan L. Rupe, Morrison & Hecker, L.L.P., Wichita, Kansas, for DefendantsAppellees.
Before KELLY, HOLLOWAY, and HENRY, Circuit Judges.
HENRY, Circuit Judge.
Richard C. Lytle was employed as a police officer by the City of Haysville,
Kansas from 1983 until 1991, when he was discharged after alleging that fellow
statement to Mr. Berg under oath. See Aplts App. vol. II at 620-93 (Tr. of April
27, 1991 statement).
In his statement to Mr. Berg, Mr. Lytle explained that it was his wife who
had first contacted Mr. Berg because the shooting had been troubling her
husband. See id. at 624. Mr. Lytle then described his actions and observations on
the evening of the shooting. He said that when he first arrived at the scene,
Lieutenant Powers just briefly told me what he wanted me to do, which was
interview Mrs. Wilson. Id. at 628. Mr. Lytle said that he asked Lieutenant
Powers if they had performed any type of CPR or anything on the victim and he
stated, no, he was going to die anyway. Id. at 629. Mr. Lytle said that he was a
little shocked because . . . thats the first thing that should have been done,
somebody should have given [Mr. Wilson] CPR or at least applied direct pressure
to the wound. Id.
Within a week of the shooting, Mr. Lytle added, Officer Stock gave him the
same explanation as to why the officers had not performed CPR when they first
arrived at the scene: Mr. Wilson was dying or dead anyway. Id. at 638. Mr.
Lytle agreed with Mr. Berg that the job descriptions for Haysville police officers
required that [i]f the victim is still alive, proper aid should be given. Id. at 632.
According to Mr. Lytle, the officers should have followed this policy by giving
first aid to Mr. Wilson. When questioned by Mr. Berg, he stated that the officers
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90-123.
On July 16, 1991, Chief Kitchings terminated Mr. Lytles employment.
The notice of termination cited Mr. Lytles breach of the Departments
confidentiality rules, but did not discuss the effect of Mr. Lytles statements on
the functioning of the Department. See Aplts App. vol III at 964-66.
After his dismissal, Mr. Lytle brought this suit against the City and Chief
Kitchings, alleging: (1) that his termination was in breach of an implied contract;
(2) that he was discharged in retaliation for speech protected by the First
Amendment (his statements to Mr. Berg and the press and his grand jury
testimony); and (3) that his dismissal violated state law against retaliation for
whistle-blowing. The defendants moved for summary judgment, and, during a
status conference, the district court orally granted their motion on all of Mr.
Lytles claims. As to the First Amendment claim, the district court granted
summary judgment for both defendants on the merits and for Chief Kitchings on
the additional and alternative ground of qualified immunity.
II. DISCUSSION
Mr. Lytle appeals the summary judgment granted against him on his First
Amendment and state-law retaliatory discharge claims. He does not appeal the
decision on his implied contract claim.
A. Standard of Review
We review a decision granting summary judgment de novo, under the same
legal standard applicable in the district court. See Miles v. Denver Pub. Sch., 944
F.2d 773, 775 (10th Cir. 1991). The de novo standard of review is appropriate in
this case for the further reason that: [i]n cases raising First Amendment issues .
. . an appellate court has an obligation to make an independent examination of the
whole record in order to make sure that the judgment does not constitute a
forbidden intrusion on the field of free expression. Rankin v. McPherson, 483
U.S. 378, 386 n.9 (1987) (quoting Bose Corp. v. Consumers Union of United
States, Inc., 466 U.S. 485, 499 (1984)) (internal quotation marks omitted).
Because the standard of review is de novo, we may affirm on grounds other than
those relied on by the district court when the record contains an adequate and
independent basis for that result. Cone v. Longmont United Hosp. Assn, 14
F.3d 526, 528 (10th Cir. 1994).
Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In deciding whether a
genuine issue of material fact exists, a court must draw all reasonable inferences
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a. Pickering balancing
It is well-established that a government employer cannot condition public
employment on a basis that infringes the employees constitutionally protected
interest in freedom of expression. Connick v. Meyers, 461 U.S. 138, 142 (1983).
We undertake a four-part inquiry in order to evaluate a public employees claim
that his employer has infringed this interest. See Gardetto v. Mason, 100 F.3d
803, 811 (10th Cir. 1996).
First, we consider whether the speech in question addresses a matter of
public concern. Matters of public concern are those of interest to the community,
whether for social, political, or other reasons. See Connick, 461 U.S. at 145-149.
In contrast, matters of only personal interest to government employees are not
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the performance of the speakers duties or interferes with the regular operation of
the enterprise. Id. Additionally, an employees responsibilities in the workplace
are relevant to the Pickering balancing. See id.; Koch v. City of Hutchison, 847
F.2d 1436, 1449-50 (10th Cir. 1988) (en banc). The burden of caution
employees bear with respect to the words they speak will vary with the extent of
authority and public accountability the employees role entails. Rankin, 483
U.S. at 390.
In the instant case, in conducting the required First Amendment inquiry, the
district court began by identifying the particular speech at issue. Although Mr.
Lytles complaint refers to three categories of allegedly protected speech--his
statements to Mr. Berg, his statements to the press, and his grand jury testimony-the district court considered only the first two categories. It reasoned that the
defendants contended in their summary judgment motion that Mr. Lytle had not
been terminated for his grand jury testimony and that Mr. Lytle did not dispute
this contention in his objection to the defendants motion. See Aplts App. vol.
III at 1093 (Tr. of Status Conference dated April 30, 1996) (The way I read [the
summary judgment briefs discussion of the grand jury testimony] was that
plaintiff claimed the termination was for talking to the attorney or for talking to
the media and not specifically for talking to the grand jury.). The district court
then concluded that Mr. Lytles statements to Mr. Berg and the press did touch a
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dead or dying comments before he spoke to Mr. Berg about the Wilson case.
Although he had submitted two written reports regarding his investigation of the
Wilson shooting, these reports had a significant omission: Mr. Lytle failed to
included any statements about the dead or dying comments. Further, Mr. Lytle
made no other written record of them before he spoke to Mr. Berg. Additionally,
before he spoke to Mr. Berg, Mr. Lytle had not discussed these alleged comments
with Chief Kitchings, and he has offered no justification for his failure to do so.
Even as to Lieutenant Coleman, there is no indication that, before he spoke to Mr.
Berg, Mr. Lytle followed up his initial conversation about the dead or dying
comments in any way. As the Supreme Court has noted, [t]he burden of caution
[an employee] bear[s] with respect to the words [he] speak[s] varies with his job
responsibilities. Rankin, 483 U.S. at 390. Mr. Lytles responsibilities as a police
officer who had worked on the Wilson investigation clearly called for a degree of
caution that he failed to exercise. We therefore conclude, just as in Johnsen, that
Mr. Lytles failure to pursue his allegations internally indicates that his speech
was unnecessarily disruptive. Johnsen, 891 F.2d at 1494. That conclusion
diminishes the weight we afford his interest in the Pickering balancing.
Moreover, a government employees interest in whistleblowing is entitled
to little weight if a reasonable person in his shoes would not have believed that
there was government corruption or wrongdoing. Cf. Moore, 57 F.3d at 933
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connection between a police departments confidentiality rules and the morale and
effective functioning of the police force. See, e.g., Melton, 879 F.2d at 714.
1989). When he terminated Mr. Lytle, Chief Kitchings did mention the
confidentiality rules, and the effects on morale and efficiency documented by the
Department were foreseeable results of Mr. Lytles violation of those rules.
For all of the foregoing reasons, we believe that the Pickering balancing
tips in the defendants favor. The only factor weighing on Mr. Lytles side of the
scales is Mr. Lytles whistle blower status, and the significance of even that
factor is substantially diminished by Mr. Lytles failure to pursue his allegations
within the Department and by the unreasonableness of his beliefs about
government wrongdoing. Mr. Lytles limited interests are far outweighed by the
Departments interest in maintaining confidentiality and avoiding workplace
disruption. Accordingly, the district court properly granted summary judgment to
the defendants on Mr. Lytles First Amendment claim. 4
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