Charles Buazard v. Charles Meridith John Patrick City of Pocahontas, Arkansas
172 F.3d 546
8th Cir.
1999
Check Treatment

*2 ARNOLD, Before RICHARD S. HEANEY, and MORRIS SHEPPARD ARNOLD, Judges. Circuit ARNOLD, Judge. Circuit RICHARD S. this case brought Charles Buazard Meridith, Charles John against defendants Patrick, Pocahontas, City of Ar- and the kansas, First a violation of his alleging The speech. Amendment granted summary judg- Court1 District defendants, and Bua- ment in favor of the appeals. agree zard now We deci- summary-judgment District Court’s sion and therefore affirm. city of Pocahontas hired

In 1984 the Buazard re- patrol Buazard as a officer. promotion to Assistant Chief ceived 10, 1994, two August Police in 1989. On Depart- of the Pocahontas Police officers Although were fired for misconduct. ment at the incident present Buazard was Buazard dis- firings,2 to the which led both of the offi- cussed the incident with witnesses, cers, and was as as with well the officers were fired. present when Police, the Chief of Upon request Meridith, prepаred two Charles Buazard about his conversations statements The the fired officers. the witnesses and firing the actual statements also discussed officers, Buazard was of the two for which firings, a month present. Within tell him Meridith Buazard approached state- in his that some of information be need to would ments was false and Jr., mistreating for George The officers were fired 1. The Hon. Howard Judge and Western the Eastern District prisoner. Districts Arkansas. address a matter of concern. Buazard stood his state- any Bausworth v. Hazelwood Schoоl ments as truthful and refused to make (8th Cir.1993). changes. Addition- Meridith and Buazard never dis- again. ally, cussed the matter if the does address a matter public concern, the court must balance alleges that Meridith and John *3 employee's right speech to free Patrick, Poсahontas, of retaliat- public employer the interests of the "in refusing change ed him for to his promoting efficiency of the services statements. He was demoted from Assis- performs through employees." its Pick- patrolman tant Chief to and felt ostracized еring Educ., v. Board of 391 U.S. by both Meridith and Patrick. Meridith 1731, (1968). 88 S.Ct. 20 L.Ed.2d 811 See and Patrick maintain that Buazard was City Springs, also Kincade v. souri, of Blue Mis- poor job performance. demoted because of (8th Cir.1995). 64 F.3d 395 given Buazard also believes he was not speech Because the in this case-Bua- training opportunities same as the other zard's statements and his refusal to police given Pocahontas menial work. officers and was change them-does not address a matter public concern, reach, of we do not alleged After his dеmotion and the other address, step need not the second of the action, brought adverse Buazard this 42 Pickering balancing ‍​​​‌​‌‌‌​‌‌‌‌‌​‌​​‌​‌​‌‌​​‌​‌‌‌‌‌​​​‌‌​​‌​‌‌​‌‌​‍test. action, alleging § U.S.C. a violation of employee's speech right speech. "Whether an his First Amendment to free argues addressеs a matter of concern must Buazard that the actions of Men- by content, form, dith and Patrick were taken in retaliation be determined speech exercising right context" of the and that for Buazard's political, speech refusing change must relate to sоme "matter of in to his state- community." ments. The District Court determined social or other concern to the Myers, 138, 146-47, speech question Connick v. that was not a (1983). public concern, 75 L.Ed.2d 708 matter of and was there- suggest protected by Our earlier cases in this area fоre not the First Amend- speech constitutionally agree Buazard's is not ment. Because we with this deter- protected. Day Johnson, mination, See v. we affirm the District Court's (8th Cir.1997); grant summary judgment Bausworth v. Hazel in favor of the (8th defendants. wood School 986 F.2d 1197 Cir. 1993). public employee's sрeech When a is grant We review the District Court's purely job-related, speech will not be summary judgment Lynn de novo. See deemed a matter of concern. See Campus, Deaconess Med. Ctr.-West 160 Day, 657; Bausworth, 119 F.3d at (8th Cir.1998). Summary employee F.2d at 1198-99. Unless the is judgment proper where the evidence speaking citizen, as a concerned and not genuine shows "that there is no issue as to just employee, speech as an does not any moving par- material fact and that the protection fall under of the First ty judgment is entitlеd to a as a matter of Amendment. Id. Both of the statements 56(c). law." Fed.R.Civ.P. concerning firing Buazard wrote Liberty Lobby, Inc., Anderson v. two officers were done at the re 242, 247-48, 91 L.Ed.2d 202 quest Although of the Chief of Police. (1986). firings may incident which led to the itself public employee public concern, A such as Bua- be a matter of there is no alleging Buazard, making, zard a violation of the indication that or re speech speech fusing change, statements, free must show that the was tak question protections ing any citizen, is entitled to the action as a concerned rath speech simply employee following the First Amendment. The must er than as an refusing expanded orders or to follow them. Bua- should not be to foreclose the and claim of a official who change zard’s refusal his statements refusеd be party ensuing allegedly retaliatory by municipal corruption. actions were actions taken Bua- superiors, alleged Charles Buazard has the follow- zard in his role as a officer. facts, ing which this court must read in the light most favorable to him. The chief of The context in which the police instructed to file a report occurs—in addition to the content and concerning an incident a police wherein form of the also relevant. See —is officer, for the stated purpose of alleviat- Connick, 461 U.S. at 103 S.Ct. 1684. bоredom, conspired prisoners with two In Buazard’s the statements were ‍​​​‌​‌‌‌​‌‌‌‌‌​‌​​‌​‌​‌‌​​‌​‌‌‌‌‌​​​‌‌​​‌​‌‌​‌‌​‍to induce another police officer to mace a entirely internal to the Pocahontas police. *4 prisoner. fired, third Both officers were public employee necessarily A does not though the officer who administered the give up and the mace was unaware that she had been set Amendment, protection simply of the First up. Subsequently, expressed speech private, because his not ex disagreement the chief his сhiefs pressed public. to the See Givhan situation, handling stating that he Western Consolidated School 439 would have investigated the matter further 410, 414, U.S. 99 S.Ct. 58 L.Ed.2d 619 taking any before action appar- (1979). The internal nature of Buazard’s ently non-eulpable officer. Some time af- is, hоwever, speech a factor to be consid ter the a firings, Buazard attended lunch together, ered. Taken the internal nature mayor. with the chief of At of the statements and role Buazard’s as lunch, repeatedly expressed employee making in the statements lead us city his view that the could not afford a to conclude that a speech was not wrongful termination suit the fired offi- public matter of concern. Because the thereafter, Shortly po- cers. the chief of concern, speech was not a matter of approached lice told him Buazard and the First Amendment protec affords no report some of the statements in his were was, therefore, tion for the speech. There incorrect and would have to be no violation of Buаzard’s First Amendment Buazard, connecting the chiefs command rights. concerns, mayor’s earlier stated If, contends, plaintiff as superior or- report refused to alter his earlier truthful him dered to lie and then him for demoted city in order to insulate the from tort refusing, injustice an has been done. But liability. it is not one actionable under 42 U.S.C. notes, majority correctly speech As the § on a free-speech theory, under our only employees receives limited precedents defining speech on matters of protectiоns. First See Amendment Con public concern. We therefore affirm. 138, 143, Myers, nick v. 461 U.S. 103 S.Ct. It is so ordered. (1983). Nonetheless, 75 L.Ed.2d 708 employers suppress cannot HEANEY, Circuit Judge, dissenting. in rights employees participate of their n Though majority correctly “politi states the or make cоmments matters of upon cal, law governing speech rights of em- social or other concern to the commu 1684; ployees, join nity.” I cannot in id. at see the conclusion 103 S.Ct. the First Healthy City Amendment also Mt. Bd. Educ. v. pro- does not 274, 283-84, tect public employees Dоyle, forced to being (1977). choose majority between The rec falsifying report or 50 L.Ed.2d being terminated. The it line of this rule but asserts that does limiting ognizes decisions protections “purely First Amendment because that is apply speech not where speech рurely is of a matter of job-related will not be deemed a job-related” nature and because “there is no While this that Buazard’s

public concern does indicate Buazard, concern, making, speech or re by public indication that was animated statеments, tak fusing change, was does not dictate that the was citizen, any “purely job-related.” a concerned rath action as Buazard was hired such, following an simply employee uphold er than as and enforce the law. As so, refusing Supra filing report, refusing orders or to ‍​​​‌​‌‌‌​‌‌‌‌‌​‌​​‌​‌​‌‌​​‌​‌‌‌‌‌​​​‌‌​​‌​‌‌​‌‌​‍follow them.” a false or to do 657; Day, at at Baus (citing purely job-related could not be a action. 1198-99). worth, at majority The allows that miscon- my I In disagree involving prisoners with this assessment. duct abuse of and a are subsequent attempt by city view the facts of this case closer officials to cov- McPherson, up those in Rankin v. er nature of misconduct liability 97 L.Ed.2d 315 order to are avoid issues which (1987), in which the the public may Court considered take an interest. The ma- constable, situation deputy jority wherein a nonetheless characterizes Buazard’s office, employee clerical in the constable’s purely job-related as because he attempt remarked after the assassination does not explicitly state that his actions Reagan they go on Presidеnt that “If reflected his a public concerns as citizen again, they him him.” In hope get regarding deter- the handling of the misconduct. *5 mining pro- that the statement I constituted believe that the issue of whether Bua- speech regarding public tected of issues zard’s refusal tо alter report was ani- concern, the larger by Court examined the mated public mindedness constitutes a fact, context in which the statement disputed question occurred. of precluding thus 386-87, (citing summary See id. at 107 S.Ct. 2891 judgment. At worst Buazard Connick, 146-48, at 103 S.Ct. was by motivated self-interest and was 1684). Because the statement was made attempting liability to avoid the criminal in the context of a conversation concerning that he thought upon falsify- would accrue best, the President’s policies, At police report.3 the record protected. was id. at suggests 385 n. that Buazard’s refusal to alter S.Ct. (holding public employer that a the report was a disagree*- function his may not protected divorce statement from ment mayor’s with the chief plan and context and use that statement standing city to insulаte the liability. from In ei- alone discharge). as basis for ther precludes record resolution summary this case at judgment Similarly, it is difficult to see how Bua- stage. “purely job-related” zard’s can be given the larger context in which the The district court it significant found speech occurred. There simply pure- is no that the chief of in his police conversation ly job-related reason that he would refuse with Buazard specify por- did not which to file a false report. contrary, On the report tions of the he wanted oppоsition to a political cover-up is almost While Buazard seems incapable of articu- by public-minded, definition rather than lating the connection deposition, in his it is job-related, reason, speech. For apparent this I complaint from the that his bаsic have difficulty understanding how refusal contention is that police chief of at- to party become a to political corruption tempted to coerce him into participating can be “purely job-related” construed as plan falsify their to regarding information speech. Additionally, in police Buazard states Upon reading misconduct. the re- January deposition port drawing and a reasonable inference in refusal change to report light Buazard, stemmed from a favorable tо as we are do, belief that altering required to persuaded record I am that Bua- would expose him to liability. criminal zard has genuine raised issue material 3. Even if it were report, clear that “job-related” this belief this would not be so as were the sole basis аnalysis. for Buazard’s refusal to to end the alter the fact as whether the meant chief report

for him alter the in accordance mayor’s concerns. ‍​​​‌​‌‌‌​‌‌‌‌‌​‌​​‌​‌​‌‌​​‌​‌‌‌‌‌​​​‌‌​​‌​‌‌​‌‌​‍Buazard’s re- job- was not purely

fusal follow orders

related but rather speech informed of what was right considerations

just city’s with regard to the role inves-

tigating firing the officers.4

Because the supports record the conclu

sion motivating factor in Bua-

zard’s refusal follow orders was regarding the city

mindedness behavior of

officials in attempting city to insulate the liability misconduct,

from for I

would prong reach second of the Pick

ering analysis. Since the of the interest

public employer in “promoting the efficien

cy services performs

through employees,” Pickering, its see

U.S. at cannot be said

to outweigh the employee’s right to free

speech where the “services” in question alleged

are falsification of records order the municipality liability, insulate entry

would reverse the of summary judg

ment and remand further proceedings. *6 KRATCHMAROV, Petitioner,

Petre I. HESTON,

Michael District Director of ‍​​​‌​‌‌‌​‌‌‌‌‌​‌​​‌​‌​‌‌​​‌​‌‌‌‌‌​​​‌‌​​‌​‌‌​‌‌​‍Immigration Service; Reno,

Naturalization Janet

Attorney States, General of the United

Respondents.

No. 98-1958.

United States Court of Appeals,

Eighth Circuit. Dec.

Submitted 1998.

Decided March 1999. Moreover, wishes, were "job- Buazard's motivations chief's both in related,” stronger preserve job security inference that he order to and to would have had strong good working follow maintain incentives relations.