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Miriam Leverington v. City of Colorado Springs

May 5, 2011


Appeal from the United States District Court for the District of Colorado (D.C. No. 1:09-CV-01999-RPM)

The opinion of the court was delivered by: Ebel, Circuit Judge.


Elisabeth A. Shumaker Clerk of Court

United States Court of Appeals Tenth Circuit

Before HARTZ, TACHA, and EBEL, Circuit Judges.

For over a year, Plaintiff-Appellant Miriam Leverington worked as a cardiac nurse for the internal staffing agency of Memorial Health System ("Memorial"), which is an enterprise of the City of Colorado Springs (the "City"). However, Ms. Leverington was fired from her position after she told Colorado Springs Police Officer Duaine Peters, during a "less than cordial" traffic stop, that she hoped she never had him as a patient. Peters informed Leverington's superiors about her statement, and Memorial terminated her employment.

Leverington sued Peters and the City, doing business as Memorial, under 42 U.S.C. § 1983, alleging that the defendants violated her First Amendment right of free speech. The defendants filed a motion to dismiss under Rule 12(b)(6), which the district court granted. For the reasons discussed below, we affirm.


From November 14, 2007, to December 23, 2008, Ms. Leverington worked as a cardiac nurse for "M-Staff," Memorial's internal staffing agency. On December, 17, 2008, Ms. Leverington was pulled over by Officer Peters at or near the North Nevada Avenue Exit off of Interstate 25 in Colorado Springs. Peters wrote Ms. Leverington a ticket for speeding, and during the traffic stop "their conversation became less than cordial." (Aplt. App'x at 5, ¶¶ 13, 15.) After Peters gave Ms. Leverington the ticket, she "told him that she hoped she never had him as a patient." (Id. at 5, ¶ 16.) Peters replied, "I hope not too, because maybe I'll call your supervisor and tell her you threatened me." (Id. at 5, ¶ 18.) After Ms. Leverington stated to Peters that she was not threatening him, Peters told Ms. Leverington not to make comments like that, "because I don't appreciate it whatsoever, and that is very, very unprofessional on your part. I will be calling your supervisor." (Id. at 5, ¶¶ 19-20.)

Within five days after that conversation, Peters contacted Ms. Leverington's supervisors at M-Staff and informed them that he had been threatened by Ms. Leverington. On December 22, 2008, Carlene Crall, Memorial's Chief Human Resources Officer, "emailed Jonathan Liepe with M-Staff and Terry Huskins with Human Resources and instructed them to terminate Ms. Leverington's employment." (Id. at 5-6, ¶ 22.) Mr. Liepe called Ms. Leverington the next day and told her that "her employment was terminated immediately because she had threatened a police officer." (Id. at 6, ¶ 23.)

On August 21, 2009, Ms. Leverington filed a complaint against Peters and the City, doing business as Memorial, alleging causes of action under 42 U.S.C. § 1983 for violation of Ms. Leverington's free-speech rights under the First Amendment. On October 21, 2009, defendants filed a motion to dismiss Ms. Leverington's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. They alleged that the complaint failed to state a claim against either defendant and that Peters was entitled to qualified immunity. The district court granted the defendants' motion and entered judgment on November 12, 2009, concluding that "[t]here is no authority to support a claim that such a single statement in that context can be considered protected speech."*fn2

(Id. at 63.)


I.Standard of Review

"We review de novo a district court's dismissal under Federal Rule of Civil Procedure 12(b)(6). We assume the truth of all well-pleaded facts in the complaint, and draw all reasonable inferences therefrom in the light most favorable to the plaintiffs." Dias, 567 F.3d at 1178 (citation omitted). "In First Amendment cases, we have 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." Thomas v. City of Blanchard, 548 F.3d 1317, 1322 (10th Cir. 2008) (internal quotation marks omitted).

However, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In other words, the "[f]actual allegations must be enough to raise a right to relief above the speculative level," and a complaint that merely offers "labels and conclusions," or "a formulaic recitation of the elements of a cause of action," is insufficient. Twombly, 550 U.S. at 555.

II.Ms. Leverington's Claim Against Memorial*fn3

At the heart of Ms. Leverington's claim against Memorial is her contention that Memorial violated her rights of free speech under the First Amendment when it fired her for telling Officer Peters "that she hoped she never had him as a patient." (Aplt. App'x at 5, ¶ 16.) As discussed below, while Ms. Leverington certainly has free speech rights even as a public employee, in this case Memorial did not overstep its bounds in taking action against her for her statement to Peters.

"[A] public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment." Connick v. Myers, 461 U.S. 138, 140 (1983). "Rather, 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). However, the interests of public employees in commenting on matters of public concern must be balanced with the employer's interests "in promoting the efficiency of the public services it performs through its employees." Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); see also Garcetti, 547 U.S. at 420 ("The Court's decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions.").

The Court in Pickering sought to achieve this balance through the adoption of a four-part test to be implemented in public-employee, free-speech cases. See, e.g., Kent v. Martin, 252 F.3d 1141, 1143 (10th Cir. 2001) (describing Pickering test). In Garcetti, the court expanded on the Pickering test by adding a fifth, threshold inquiry that seeks to determine whether the speech at issue was made pursuant to the public employee's official duties. Garcetti, 547 U.S. at 421; see also Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202 n.4 (10th Cir. 2007) ("Garcetti made clear that the first step is to determine whether the employee speaks pursuant to his official duties."). Thus, after Garcetti, "it is apparent that the 'Pickering' analysis of freedom of speech retaliation claims is a five step inquiry which we now refer to as the 'Garcetti/Pickering' analysis." Brammer-Hoelter, 492 F.3d at 1202; see also Couch v. Bd. of Trs. of the Mem'l Hosp., 587 F.3d 1223, 1235 (10th Cir. 2009) ("When analyzing a free speech claim based on retaliation by an employer, this court applies the five-prong Garcetti/Pickering test.").

The Garcetti/Pickering test thus includes the following inquiries:

(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 ...

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