Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Knopf v. Williams

United States Court of Appeals, Tenth Circuit

March 5, 2018

PAUL E. KNOPF, Plaintiff - Appellee,
KENT WILLIAMS, in his individual capacity, Defendant-Appellant.

         Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:16-CV-00050-MLC)

          Richard Rideout of Law Offices of Richard Rideout, PC, Cheyenne, Wyoming, for Defendant - Appellant.

          John H. Robinson of Jamieson & Robinson, LLC, Jackson, Wyoming (James E. Phillips of Phillips Law, LLC, Evanston, Wyoming, with him on the brief), for Plaintiff -Appellee.

          Before BRISCOE, EBEL and MATHESON, Circuit Judges.

          MATHESON, Circuit Judge.

         Paul E. Knopf, the former Director of the Planning and Development Department ("City Planner") in Evanston, Wyoming ("City"), sued Mayor Kent Williams under 42 U.S.C. § 1983. Mr. Knopf alleged that Mayor Williams retaliated against him for exercising his First Amendment rights. He claimed Mayor Williams did not reappoint him to his position as City Planner because he had sent an email to the City Attorney raising concerns about impropriety relating to a City project.

         In federal district court, Mayor Williams moved for summary judgment based on qualified immunity, which the court denied. In this interlocutory appeal, he asks us to reverse the district court's denial. This court has jurisdiction under 28 U.S.C. § 1291.

         Because this opinion and Judge Briscoe's concurrence conclude that Mr. Knopf has failed to show a violation of clearly established federal law on an essential element of his claim, this court reverses the district court's denial of sovereign immunity to Mayor Williams.

         I. BACKGROUND

         A. Factual History

         1. Mr. Knopf's Position as City Planner

         Mr. Knopf began working for the City in 1985 in the Planning and Development Department ("Department"). He was appointed to the position of City Planner in 1987. His job as City Planner included the following responsibilities:

1. Managing the Department, which consisted of the associate city planner and an administrative assistant.
2. Addressing citizen inquiries concerning fencing and building permits and responding to development requests.
3. Preparing for planning and zoning commission meetings and hearings.
4. Preparing conditional-use permit reports, variances, zone changes, and amendments for planning commission consideration.
5. Collaborate in crafting site plans for various city projects.[1]
6. Representing the Department to other City departments in explaining its programs and in resolving sensitive, significant, and controversial issues.
7. Coordinating activities with other departments and outside agencies and organizations.
8. Ensuring compliance with codes and regulations related to planning and development matters.[2]

         2. Mr. Knopf's Involvement in the Bear River Project

         One of the Department's projects was the Bear River Project ("Project"), which aimed to develop a public greenway along the Bear River over a series of phases laid out in the BEAR Project Master Plan ("Master Plan"). In 1983, before Mr. Knopf's arrival, the Department identified various locations for development, including the area along the Bear River. In 1987, after joining the Department, Mr. Knopf began to develop the Master Plan, planning out the Project's sub-projects (or "phases"). The Project's main goals were to establish and maintain a public greenway for recreation, water conservation, flood control, reclamation, rehabilitation, and wildlife resources preservation.

         As part of the Project, Mr. Knopf started a citizens committee that would provide input about the greenway's development. The committee eventually incorporated as the nonprofit BEAR Project, Inc. ("Non-Profit"), and played a major role in planning and executing the Project even though the Non-Profit was unaffiliated with the City. The Non-Profit worked on the Master Plan with Mr. Knopf, raised money, sought private and public partners, oversaw the Project's execution, and coordinated the stakeholders.

         The Project involved many phases and many participants over three decades. In addition to the Department and the Non-Profit, private groups-including a private engineering firm and its contractors and sub-contractors-and other City department employees-including the Parks and Recreation Director and the City Engineer-have participated in planning and executing the Master Plan.

         Although the Project involved multiple phases of development, only one is at issue here-the Meadows Project. Mr. Knopf and his Department's role in the Meadows Project differed from the other phases, such as the Bear Paw Trailhead Project and the Greenway Entryway Project, which preceded the Meadows Project. The Non-Profit coordinated the parties in these three phases, reporting to the City with any issues or concerns. The Department was involved in the planning of all three phases, developing the site plan, attending meetings with other parties, and advising them about the three phases' place in the overall Master Plan.

         Mr. Knopf, as the department head, also acted as the point person between the City and the private groups (i.e. the Non-Profit and the private engineering firm), but only for the first two phases-not for the Meadows Project. The Department facilitated communication between the parties and coordinated project reviews, payments, and orders, passing them along to the City, for the first two projects. But for the Meadows Project, Brian Honey, the City Engineer, was the point person.

         3. Mr. Knopf's Email Concerning the Meadows Project and his Dismissal

         Disagreement arose over the Meadows Project in October 2015. T-Bar, a subcontractor for irrigation, topsoil, and sod, requested $22, 300 more than the originally budgeted amount for topsoil. The private engineering firm's project engineer, Brent Sanders, recommended denying T-Bar's request because he believed T-Bar performed substandard work and had improperly calculated its costs. But Mr. Honey, the City Engineer and the City's point person on the Meadows Project, recommended fulfilling T-Bar's request. Mr. Sanders became increasingly concerned about possible collusion among Mr. Honey, Mayor Williams, and City Councilman Tom Welling, whose brother-in-law owned T-Bar.

         Mr. Knopf learned of the dispute from Mr. Sanders and from a public City Council meeting. On October 7, 2015, Mr. Knopf emailed the City Attorney, Dennis Boal, with his concerns. He believed that Mr. Honey's friendship with the owner of T-Bar was "clouding [Mr. Honey's] better judgment." ROA, Vol. I at 15. Further, he stated that Mr. Honey was impeding Mr. Sanders's ability to perform his duties as the project engineer. Mr. Knopf did not receive a response from Mr. Boal.

         On December 11, 2015, Mayor Williams met with Mr. Knopf. Mr. Knopf expressed his concerns about Mr. Honey and the Meadows Project and told the Mayor about his October 7 email to Mr. Boal. On January 4, 2016, Mayor Williams again met with Mr. Knopf and informed Mr. Knopf that he would not be reappointing him as City Planner. Mayor Williams said Mr. Knopf's email to the City Attorney was unacceptable and that he had lost confidence and trust in him.

         B. Procedural History

         Mr. Knopf filed a complaint in Wyoming state court against Mayor Williams in his individual and official capacities. It alleged a First Amendment retaliation claim under 42 U.S.C. § 1983.[3] Mayor Williams removed the case to the United States District Court for the District of Wyoming. He moved for summary judgment based on qualified immunity because (1) Mr. Knopf had failed to prove a violation of a constitutional right, and (2) the law was not clearly established at the time of Mr. Knopf's dismissal.

         The district court denied Mayor Williams summary judgment on Mr. Knopf's First Amendment retaliation claim. It determined that Mr. Knopf had sufficiently alleged facts that if proven would constitute a First Amendment violation and that Mayor Williams's conduct violated clearly established law. On clearly established law, the court said that, "since at least 1998, it is clearly established that a public employer cannot retaliate against an employee for exercising their First Amendment right to free speech." Dist. Ct. Op. 17.


         A. Legal Background

         1. 42 U.S.C. § 1983 and Qualified Immunity

         Under 42 U.S.C. § 1983, a person acting under color of state law who "subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . ." "Individual defendants named in a § 1983 action may raise a defense of qualified immunity, which shields public officials from damages actions unless their conduct was unreasonable in light of clearly established law." Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (citation, ellipsis, and quotations omitted).

         "Once an individual defendant asserts qualified immunity, the plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct." Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016) (quotations omitted). "This is a heavy burden. If the plaintiff fails to satisfy either part of the inquiry, the court must grant qualified immunity." Carabajal v. City of Cheyenne, 847 F.3d 1203, 1208 (10th Cir. 2017).

         "A plaintiff may show clearly established law by pointing to either a Supreme Court or Tenth Circuit decision, or the weight of authority from other courts, existing at the time of the alleged violation." T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017). To be clearly established, "'existing precedent must have placed the statutory or constitutional question beyond debate.'" White v. Pauly, 137 S.Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)). Although there need not be a "'case directly on point, '" id. (quoting Mullenix, 136 S.Ct. at 308), "[a]n officer 'cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in his shoes would have understood that he was violating it . . . .'" City & Cty. of San Francisco v. Sheehan, 135 S.Ct. 1765, 1774 (2015) (brackets omitted) (quoting Plumhoff v. Rickard, 134 S.Ct. 2012, 2023 (2014)).

         Courts must not define "clearly established law at a high level of generality." Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). Instead, "the clearly established law must be 'particularized' to the facts of the case." White, 137 S.Ct. at 552 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "The dispositive question is whether the violative nature of particular conduct is clearly established." Mullenix, 136 S.Ct. at 308. (quotations omitted). "Otherwise, 'plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.'" White, 137 S.Ct. at 552 (brackets and ellipsis omitted) (quoting Anderson, 483 U.S. at 639).

         2. First Amendment Retaliation

         "[P]ublic employees do not surrender all their First Amendment rights by reason of their employment." Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (emphasis added). Rather, "the First Amendment protects a public employee's right . . . to speak as a citizen addressing matters of public concern." Id. The government employer, however, also has a "countervailing interest in controlling the operation of its workplaces." Lane v. Franks, 134 S.Ct. 2369, 2377 (2014). "The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968).

         In striking this balance, the First Amendment prohibits public employers from taking adverse action against employees because of their protected speech. To determine if an employer's adverse employment action against an employee is an impermissible retaliation under the First Amendment, we apply the Garcetti/Pickering test. Trant v. Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014); see Garcetti, 547 U.S. at 421; Pickering, 391 U.S. at 568.[4] The test consists of five elements:

(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.

Trant, 754 F.3d at 1165 (paragraph breaks added). "The first three elements are issues of law for the court to decide, while the last two are factual issues typically decided by the jury." Id. To prevail, a plaintiff must establish all five elements. See Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202-03 (10th Cir. 2007).

         Although the parties dispute four of the five elements, this opinion focuses on the first element to resolve this case. "If the employee speaks pursuant to his official duties, then there is no constitutional protection because the restriction on speech simply reflects the exercise of employer control over what the employer itself has commissioned or created." Couch v. Bd. of Trs. of Mem'l Hosp., 587 F.3d 1223, 1235 (10th Cir. 2009) (quotations omitted).

         We have "taken a broad view of the meaning of speech that is pursuant to an employee's official duties." Chavez-Rodriguez v. City of Santa Fe, 596 F.3d 708, 713 (10th Cir. 2010) (quotations omitted). "The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties." Lane, 134 S.Ct. at 2379. If the speech involves "the type of activities that [the employee] was paid to do, " then it falls within the scope of an employee's duties. Green v. Bd. of Cty. Comm'rs, 472 F.3d 794, 800-01 (10th Cir. 2007).

         "There are no bright line rules" in making this determination. Chavez-Rodriguez, 596 F.3d at 713. Many facts may be relevant-the tasks in an employee's job description, the frequency with which an employee performs a task, the subject matter of the employee's speech, the recipient of the employee's speech, the legal obligation for the employee to speak-but no one fact is determinative. See Brammer-Hoelter, 492 F.3d at 1203 (job description is not dispositive); Holub v. Gdowski, 802 F.3d 1149, 1156 (10th Cir. 2015), cert. denied, 136 S.Ct. 1209, 194 L.Ed.2d 184 (2016) (frequency of performance is not dispositive); Lane, 134 S.Ct. at 2379 (speech made about work is not dispositive); Rohrbough v. Univ. of Colorado Hosp. Auth., 596 F.3d 741, 747 (10th Cir. 2010) (speech made outside chain of command is not dispositive).

         We must "take a practical view of all the facts and circumstances surrounding the speech and the employment relationship." Brammer-Hoelter, 492 F.3d at 1204. Ultimately, we ask whether the employee was "perform[ing] the task[] [they were] paid to perform" when they spoke. Lane, 134 S.Ct. at 2379. If so, the "speech was therefore commissioned by his employer, " Thomas v. City of Blanchard, 548 F.3d 1317, 1323 (10th Cir. 2008), and it enjoys no First Amendment protection.

         B. Standard of Review

         "We review summary judgment de novo, applying the same legal standard as the district court." Gutierrez, 841 F.3d at 900. A "court shall grant summary judgment 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." Fed.R.Civ.P. 56(a). "When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party"-here, Mr. Knopf. See Gutierrez, 841 F.3d at 900.

         "When the defendant has moved for summary judgment based on qualified immunity, we still view the facts in the light most favorable to the non-moving party and resolve all factual disputes and reasonable inferences in its favor." Henderson v. Glanz, 813 F.3d 938, 952 (10th Cir. 2015). "Unlike most affirmative defenses, however, the plaintiff would bear the ultimate burden of persuasion at trial to overcome qualified immunity by showing a violation of clearly established federal law." Id. "Thus, at summary judgment, we must grant qualified immunity unless the plaintiff can show (1) a reasonable jury could find facts supporting a violation of a constitutional right, which (2) was clearly established at the time of the defendant's conduct." Id.

         "We may, at our discretion, consider the two parts of this test in the sequence we deem best in light of the circumstances in the particular case at hand." Bowling v. Rector, 584 F.3d ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.