from the United States District Court for the District of
Colorado (D.C. No. 1:17-CV-00577-WYD-GPG)
Benjamin P. Meade (Nicholas W. Mayle and Damon Davis with him
on the briefs), Killian Davis Richter & Mayle, PC, Grand
Junction, Colorado, for Plaintiff-Appellant.
Jeffrey L. Driscoll, Williams, Turner & Holmes, P.C.,
Grand Junction, Colorado, for Defendants-Appellees.
TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.
First Amendment protects a government employee's speech
(1) made as a citizen (2) on a matter of public concern (3)
if the employee's right to speak outweighs the
government's interest as an employer in an efficient
workplace. These are the first three steps of the familiar
analysis and they present legal questions for a
court to resolve. This appeal focuses on the second inquiry,
whether a public employee's speech is on a matter of
public concern. Generally, a matter of public concern relates
to any matter of political, social, or other concern to the
community. In order to determine whether speech is on a
matter of public concern, the Supreme Court has directed that
we consider the content, form and context of the particular
speech at issue in a given case.
Jerud Butler is a government employee, a supervisor for the
San Miguel County, Colorado, Road and Bridge Department. He
alleges that his supervisors violated his First Amendment
freedom of speech when they demoted him for testifying
truthfully in state court as a character witness for his
sister-in-law. The state-court proceeding concerned a
domestic child custody dispute between Butler's
sister-in-law and her ex-husband, who also works for the
County's Road and Bridge Department.
district court dismissed Butler's First Amendment claim
with prejudice under Fed.R.Civ.P. 12(b)(6), concluding at
step two of the Garcetti/Pickering analysis
that Butler's testimony at the custody hearing, given as
a private citizen, was not on a matter of public concern.
Having jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
In doing so, we reject Butler's assertion that
any truthful sworn testimony given by a government
employee in court as a citizen is per se always a matter of
public concern. The rule Butler suggests, and which several
circuits have adopted, gives dispositive weight to the form
and context of a public employee's speech (sworn
testimony in a judicial proceeding), but fails to give any
weight to the content of that testimony. We, instead, employ
a case-by-case approach, considering whether, in this
particular case, the content of Butler's testimony, as
well as its form and context, make it speech involving a
matter of public concern. After applying such an analysis
here, we conclude that Butler's testimony during the
child custody proceeding was not on a matter of public
concern. Although Butler's testimony involved a matter of
great significance to the private parties involved in the
proceeding, it did not relate to any matter of political,
social or other concern of the larger community.
motion-to-dismiss stage, we accept as true all of
Butler's well-pled factual allegations and view them in
the light most favorable to him. See Straub v. BNSF Ry.
Co., 909 F.3d 1280, 1287 (10th Cir. 2018). Butler
alleged the following: He works for the San Miguel County
Road and Bridge Department. On September 1, 2016, the County
promoted Butler to a district supervisor position. Six days
later, on September 7, "Butler testified in a child
custody hearing in Montrose County . . . involving his
sister-in-law and her ex-husband, who is also an employee of
the San Miguel County, Road and Bridge Department."
(Aplt. App. 10 ¶ 15.) "Butler was asked to testify
as a character witness on behalf of his sister-in-law";
he "would have been required to testify pursuant to a
subpoena had he not agreed to testify . . . ."
(Id. ¶¶ 16-17.) "At the hearing,
Butler was asked, among other things, about the hours of
operation for the San Miguel County Road and Bridge
Department." (Id. ¶ 18.) He
"responded truthfully to the question based upon his own
personal knowledge." (Id. ¶ 19.) "At
the hearing, Butler neither stated nor implied that he was
testifying on behalf of the County." (Id.
two weeks later, Mike Horner, who was San Miguel County's
Road and Bridge Director, and Kristl Howard, the County's
Human Resources Director, "conducted an investigation
into Butler's testimony at the hearing."
(Id. 10 ¶ 22.) "Following the
investigation, Horner and Howard gave Butler a Written
Reprimand and demotion." (Id. ¶ 23.)
sued the two County directors who demoted him, Horner and
Howard, under 42 U.S.C. § 1983, alleging that they
violated Butler's right to free speech under the First
and Fourteenth Amendments by demoting him for testifying
truthfully at the custody hearing. See Janus v. Am.
Fed'n of State, Cty., & Mun. Employees, Council
31, 138 S.Ct. 2448, 2463 (2018) (noting First Amendment
applies to states through Fourteenth Amendment). Defendants
moved to dismiss this claim under Fed.R.Civ.P. 12(b)(6). The
district court granted that motion, ruling that Butler had
failed to allege a First Amendment violation because his
triggering speech was not on a matter of public concern, and
the court dismissed with prejudice Butler's § 1983
claims against the two individual Defendants. It is that
decision that Butler challenges on appeal.
review de novo the district court's decision to grant
Defendants' Rule 12(b)(6) motion to dismiss and in doing
so we accept as true all well-pled factual allegations,
viewing those facts in the light most favorable to Butler.
See Straub, 909 F.3d at 1287. "To withstand a
motion to dismiss, a complaint must contain enough
allegations of fact 'to state a claim to relief that is
plausible on its face.'" Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
individual Defendants, Horner and Howard, sought dismissal of
Butler's First Amendment claim, asserting they were each
entitled to qualified immunity. To overcome Defendants'
qualified-immunity defense, Butler had to allege that (1) the
individual Defendants violated Butler's constitutional
rights, and that (2) those rights were clearly established at
the time of the alleged violation. See Pearson v.
Callahan, 555 U.S. 223, 232 (2009); Doe v.
Woodward, 912 F.3d 1278 (10th Cir. 2019). A court can
consider these two inquiries in any order. See
Pearson, 555 U.S. at 236. In this case, the district
court granted Defendants' motion to dismiss at the first
qualified-immunity inquiry, holding Butler had failed to
allege a First Amendment violation.
reaching that decision, the district court applied the
five-part Garcetti/Pickering analysis,
(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.
Bailey v. Indep. Sch. Dist. No. 69, 896 F.3d 1176,
1181 (10th Cir. 2018); see also Lane v.
Franks, 573 U.S. 228, 236-37 (2014). "In general,
the first three prongs are legal issues to be decided by the
court and the last two prongs are factual issues left to the
factfinder." Bailey, 896 F.3d at 1181.
case, Defendants conceded the first
Garcetti/Pickering inquiry, that Butler
testified as a private citizen, but moved to dismiss arguing
that Butler had failed to allege adequate facts to succeed on
either the second or third
Garcetti/Pickering inquiry. The district
court granted the motion to dismiss, ruling at the second
Garcetti/Pickering step that Butler had
failed to allege that his testimony was on a matter of public
involves matters of public concern when it can be fairly
considered as relating to any matter of political, social, or
other concern to the community, or when it is a subject of
legitimate news interest; that is, a subject of general
interest and of value and concern to the public."
Lane, 573 U.S. at 241 (internal quotation marks
omitted); see also Bailey, 896 F.3d at 1181
("Matters of public concern are issues of interest to
the community, whether for social, political, or other
reasons." (internal quotation marks omitted)). For
example, "[s]tatements revealing official impropriety
usually involve matters of public concern." Trant v.
Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014) (internal
quotation marks omitted); see also Eisenhour v. Weber
Cty., 744 F.3d 1220, 1228 (10th Cir. 2014) ("Speech
involves a public concern when the speaker intends to bring
to light actual or potential wrongdoing or breach of public
trust by a public official or to disclose any evidence of
corruption, impropriety, or other malfeasance within a
governmental entity." (internal quotation marks,
alterations omitted)). Speech aimed at "air[ing]
grievances of a purely personal nature" is generally not
on a matter of public concern. Lighton v. Univ. of
Utah, 209 F.3d 1213, 1225 (10th Cir. 2000); see also
Morris v. City of Colo. Springs, 666 F.3d 654, 661 (10th
Cir. 2012) ("Speech relating to internal personnel
disputes and working conditions ordinarily" does not
"address[ ] matters of public concern." (internal
quotation marks, alteration omitted)). "Courts construe
'public concern' very narrowly." Leverington
v. City of Colo. Springs, 643 F.3d 719, 727 (10th Cir.
2011) (internal quotation marks omitted).
Garcetti/Pickering analysis limits the
First Amendment protection of a government employee's
speech to speech on matters of public concern-"the core
value of the Free Speech Clause of the First Amendment,"
Pickering, 391 U.S. at 573-in order "to ensure
that citizens are not deprived of fundamental rights by
virtue of working for the government." Connick v.
Myers, 461 U.S. 138, 147 (1983). This is not to suggest
that the First Amendment only protects speech on matters of
public concern. See id. But in the context of public
when a public employee speaks not as a citizen upon matters
of public concern, but instead as an employee upon matters
only of personal interest, absent the most unusual
circumstances, a federal court is not the appropriate forum
in which to review the wisdom of a personnel decision taken
by a public agency allegedly in reaction to the
Id. "When employee expression cannot be fairly
considered as relating to any matter of political, social, or
other concern to the community, government officials should
enjoy wide latitude in managing their offices, without
intrusive oversight by the judiciary in the name of the First
Amendment." Id. at 146. "Perhaps the
government employer's dismissal of the worker may not be
fair, but ordinary dismissals from government service which
violate no fixed tenure or applicable statute or regulation
are not subject to judicial review even if the reasons for
the dismissal are alleged to be mistaken or
unreasonable." Id.; see also Garcetti,
547 U.S. at 418 (stating that if public employee did not
speak as a citizen on a matter of public concern, "the
employee has no First Amendment cause of action based on his
or her employer's reaction to the speech").
appeal, Butler asserts two reasons why the district court
erred in concluding that his testimony was not on a matter of
public concern. First, he argues that any sworn testimony
given by a public employee should per se always be a matter
of public concern. Secondly, he contends that even if we do
not adopt a per se rule, in this case his testimony was, in
fact, on a matter of public concern, based on the state's
general interest in child welfare and fair custody
proceedings. We are not persuaded by either argument.
We reject Butler's argument that any sworn testimony
given by a public employee is per se always a matter of
first argues for a sweeping per se evidentiary rule that
would treat any sworn testimony given by a public employee in
a judicial proceeding as always a matter of public concern.
We reject such a per se rule because the Supreme Court has,
instead, mandated a case-by-case approach, directing us to
consider the content, form and
context of the testimony in light of the record as a
whole in a particular case.
The Supreme Court's mandate
Supreme Court has directed courts, "[i]n assessing
whether speech pertains to a matter of public concern,"
to "consider 'the content, form, and context of a
given statement, as revealed by the whole record.'"
Bailey, 896 F.3d at 1181 (quoting Connick,
461 U.S. at 147-48). We employ this case-by-case approach in
determining whether any other kind of public-employee speech
is on a matter of public concern. See id.; Nixon
v. City & Cty. of Denver, 784 F.3d 1364, 1367-69
(10th Cir. 2015).
as to a government employee's speech in the form of sworn
testimony given in a court proceeding, the Supreme Court
itself applied Connick's case-by-case approach
in Lane v. Franks, 573 U.S. 228 (2014), to decide
whether a public employee's truthful sworn testimony was
on a matter of public concern. The overall question presented
in Lane was whether the plaintiff, Edward Lane, a
public official at a community college, was fired for
testifying truthfully in criminal proceedings against a
former employee-a state representative-who Lane had fired for
collecting her paycheck but never coming to work.
Id. at 231-34. In ...