APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING, (D.C. No. 2:08-CV-00191-ABJ).
The opinion of the court was delivered by: Hartz, Circuit Judge.
Before BRISCOE, MCKAY, and HARTZ, Circuit Judges.
After being fired as police chief, Robert Deutsch filed federal civil-rights and state-law claims against the City of Laramie, Wyoming, and city manager Janine Jordan. He alleged that he was terminated in retaliation for bringing a defamation lawsuit against a private citizen and for his testimony during that litigation. The United States District Court for the District of Wyoming granted summary judgment to the defendants on all claims except for Mr. Deutsch's claim that Ms. Jordan had retaliated against him for exercising his right to free speech, thereby violating the First Amendment (as applied to the states under the Fourteenth Amendment, see Petersen v. Utah Dept. of Corr., 301 F.3d 1182, 1191 (10th Cir. 2002)).
Ms. Jordan appeals the denial of her motion for summary judgment on that claim, contending that she is entitled to qualified immunity. Mr. Deutsch filed a motion to dismiss the appeal for lack of jurisdiction, but we deferred ruling on the motion until briefing and argument on the merits. We deny the motion in part. We have jurisdiction to review the district court's ruling that Mr. Deutsch's testimony in his civil suit was on a matter of public concern. And on the merits we affirm that ruling. But we also grant the motion in part. We lack jurisdiction to review the district court's determination that there is a genuine issue of fact regarding whether Ms. Jordan fired Mr. Deutsch because she believed he had lied during his defamation-suit testimony.
In the summer of 2007, Mr. Deutsch used City petty cash to purchase a laptop computer for $1,433.11. The purchase violated City policy. But the violation was apparently unknown to the public until a city-council meeting in May 2008. At the meeting Tim Hale, a private citizen, stated that there might have been a misappropriation of City petty cash by a department director and inquired how such a matter would be handled. He provided no specifics. Hale allegedly later sent a letter to Ms. Jordan regarding Mr. Deutsch that referred to the $1,433.11 spent for the laptop. Thereafter, Mr. Deutsch filed a defamation lawsuit against Hale in small-claims court. Trial was held on June 25, 2008. The judge dismissed the lawsuit after Mr. Deutsch's testimony, holding that he was a public figure and that he had failed to demonstrate by clear and convincing evidence that Hale's statements were made with actual malice. Ms. Jordan, who had been subpoenaed by Hale to appear as a witness, did not testify, but she heard Mr. Deutsch's testimony.
After the judge's ruling, Mr. Deutsch announced to the media that he would be leaving his job. Ms. Jordan heard the announcement on the radio and met with Mr. Deutsch on June 26. He told her that he planned to leave City employment in about six months, and Ms. Jordan discussed a number of concerns she had with his performance. On July 1, 2008, Mr. Deutsch and Ms. Jordan met again.
Ms. Jordan told Mr. Deutsch that she was concerned that he had not testified truthfully at the defamation trial. Later that day she fired him.
In district court Ms. Jordan asserted that Mr. Deutsch had made the following false statements during his defamation-trial testimony: (1) that he did not know why the police department maintained a petty-cash balance of $2,400; (2) that he did not understand the petty-cash policy and that the policy was under revision; (3) that he did not know he had violated the petty-cash policy until informed by City officials; (4) that he promptly reimbursed the City for the laptop computer, as directed by Ms. Jordan; (5) that he was given a second chance to purchase the computer with public funds through the proper procedure; (6) that he had not been instructed on how to purchase the computer properly; (7) that he had provided all proper documentation for the laptop purchase; (8) that his administrative assistant had suggested that he use petty cash to purchase the computer; and (9) that he had permission to be reimbursed for the purchase.
Mr. Deutsch countered with evidence that he had never made some of the allegedly false statements and that the statements he did make were true.
1. First Amendment Rights of Public Employees
The First Amendment prohibits the government from punishing a person for exercising the right to free speech. When the government is the person's employer, however, the right to free speech is limited in ways that would otherwise be unconstitutional. On one hand, "the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). But "[a]t the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). Accordingly, we follow a five-step approach (the Garcetti/Pickering analysis) to determine whether the government employer has violated the employee's free-speech rights. The first step, which the Supreme Court announced only four years ago in Garcetti, is for the court to "determine whether the employee speaks pursuant to his official duties. 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." Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202 (10th Cir. 2007) (brackets, citation, and internal quotation marks omitted). If the speech is not pursuant to official duties, the second step (which, like the remaining three, derives from Pickering) requires the court to "determine whether the subject of the speech is a matter of public concern. If the speech is not a matter of public concern, then the speech is unprotected and the inquiry ends." Id. at 1202--03 (citations omitted). If the speech is on a matter of public concern, [t]hird, . . . the ...