PAUL E. KNOPF, Plaintiff - Appellee,
KENT WILLIAMS, in his individual capacity, Defendant-Appellant.
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.
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.
BRISCOE, EBEL and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
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
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.
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.
Mr. Knopf's Position as City Planner
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
4. Preparing conditional-use permit reports, variances, zone
changes, and amendments for planning commission
5. Collaborate in crafting site plans for various city
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.
Mr. Knopf's Involvement in the Bear River
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.
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.
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
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.
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
Mr. Knopf's Email Concerning the Meadows Project
and his Dismissal
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.
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.
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.
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. 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.
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.
42 U.S.C. § 1983 and Qualified Immunity
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).
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).
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)).
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).
First Amendment Retaliation
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).
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. The test consists of five elements:
(1)whether the speech was made pursuant to an employee's
(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).
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
"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).
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).
"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
Standard of Review
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.
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.
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 ...