                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                               FEB 27 2001
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                      Clerk

 ANA GONZALES,

           Plaintiff-Appellee,
 v.
 PABLO HERNANDEZ, M.D.; THOMAS                               No. 99-2280
 STRUM, Ph.D.; ROBERT PULLINGS,

           Defendants-Appellants,
 and                                               (D.C. No. CIV-95-657-M/LFG)
                                                             (D. N.M.)
 JOHN/JANE DOE, I-V, in their official
 capacities,

           Defendants.


                                 ORDER AND JUDGMENT*


Before TACHA, Chief Judge, ANDERSON, and BALDOCK, Circuit Judges.


       Plaintiff Ana Gonzales, an Hispanic female, is a psychologist employed by the Las

Vegas Medical Center (LVMC) in Las Vegas, New Mexico. In June 1995, Plaintiff filed

a complaint in federal district court against Defendants Pablo Hernandez, M.D., the



       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Administrator of LVMC, and Thomas Strum, Ph.D. and Robert Pullings, psychologists

employed by LVMC. In her complaint, Plaintiff asserts claims against Defendants arising

under 42 U.S.C. §§ 1981 & 1983. Plaintiff bases her claims on discrimination and

retaliation in violation of her First Amendment free speech rights. The district court

denied Defendants’ motion for summary judgment based on qualified immunity. We

affirm.

                                                I.

          In February 1990, Plaintiff filed an unsuccessful charge of unlawful discrimination

with the New Mexico Human Rights Commission. In her complaint, she alleged LVMC

had discriminated against her on the basis of national origin by awarding work on a crisis

hotline to Defendant Pullings. Plaintiff subsequently filed an action in state court

alleging national origin discrimination and retaliation in violation of the New Mexico

Human Rights Act, N.M. Stat. Ann. § 28-1-1 (Michie 1996).

          In June 1995, Plaintiff filed the present action in federal court. Describing the

same acts and occurrences as alleged in her state court suit, Plaintiff asserted that

Defendants discriminated and retaliated against her, violating her federal equal

protection, substantive due process, and First Amendment rights. The federal district

court stayed this action pending the outcome of the state court suit. A jury in the state

court action returned a verdict finding that LVMC did not discriminate but did retaliate

against Plaintiff. The jury awarded Plaintiff compensatory damages.


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       Defendants in the instant action then moved for summary judgment, raising the

defenses of res judicata, collateral estoppel, Eleventh Amendment, and qualified

immunity. The district court granted summary judgment to Defendants, holding the

federal claims barred by the Eleventh Amendment, res judicata, and collateral estoppel.

The district court did not address whether Defendants were entitled to qualified immunity.

Plaintiff appealed the grant of summary judgment on the issues of preclusion.

       On appeal, we affirmed the district court’s grant of summary judgment in favor of

Defendants on Plaintiff’s federal discrimination claim. Gonzales v. Hernandez, 175 F.3d

1202, 1206 (10th Cir. 1999). We reversed, however, on Plaintiff’s federal retaliation

claim. Id. at 1208. We remanded the case to the district court with leave for the parties to

reassert the issues not addressed by the district court. Id. at 1208 n.5. On remand, the

district court denied Defendants’ motion for summary judgment on Plaintiff’s retaliation

claim based on qualified immunity. This time, Defendants appeal.

       “We have jurisdiction to review interlocutory appeals from the denial of qualified

immunity to the extent they resolve abstract issues of law.” Ramirez v. Dept. of Corr., 222

F.3d 1238, 1240 (10th Cir. 2000) (internal quotation omitted); see also Johnson v. Jones,

515 U.S. 304, 312-14 (1995). Government officials may not appeal pretrial orders

denying qualified immunity to the extent the order decides nothing more than whether the

evidence could support a finding that particular conduct occurred. Foote v. Spiegel, 118

F.3d 1416, 1422 (10th Cir. 1997). Even though a district court concludes that


                                             3
controverted factual issues exist, however, a defendant may still immediately appeal the

denial of a motion for summary judgment based on the argument that, even under

plaintiff’s version of facts, defendant did not violate clearly established law. DeAnzona

v. City and County of Denver, 222 F.3d 1229, 1233-34 (10th Cir. 2000) (exercise of

jurisdiction over interlocutory appeal proper where defendant argues entitlement to

qualified immunity because plaintiff has not demonstrated a violation of clearly

established law under plaintiff’s version of the facts). Because Defendants so argue, we

have jurisdiction to review this appeal. Id.

       We review the district court’s resolution of qualified immunity issues on summary

judgment de novo. Foote, 118 F.3d at 1424. When a defendant asserts a qualified

immunity defense in a summary judgment motion, plaintiff must come forward with

sufficient facts to show both that defendant’s actions violated a federal constitutional or

statutory right and that the right violated was clearly established at the time of defendant’s

actions. Id. “The defendant bears the normal summary judgment burden of showing no

material facts that would defeat the qualified immunity defense remain in dispute.” Id.

For the law to be clearly established, a Supreme Court or Tenth Circuit decision must be

on point, or the clearly established weight of authority from other courts must be as

plaintiff maintains. Id.

                                               II.

       According to her complaint, Plaintiff, a Master’s level psychologist, works for


                                               4
LVMC, an agency of the State of New Mexico. In July 1989, LVMC received a grant of

funds to initiate an after business hours crisis hotline to provide mental health services to

the local client population of San Miguel and Mora counties. In November 1989,

Defendants Hernandez and Strum selected Defendant Pullings to work the hotline without

announcing or offering the opportunity to others by a posting and bidding process.

Plaintiff alleges she is fully qualified to operate the crisis hotline. In addition, Plaintiff’s

complaint quotes the grant “Memorandum of Understanding” indicating that

       the communities of San Miguel and Mora counties are comprised primarily
       of ethnic minorities who are economically depressed and rurally located. It
       is imperative that LVMC demonstrate cultural competency and sensitivity
       to these individuals whose cultures are rich in tradition and pride . . . Staff
       should be fluent in the predominant language[s] of the area.

Plaintiff claims that while she and the target community are Hispanic and speak fluent

Spanish, Defendant Pullings, an Anglo, speaks no Spanish. Defendants retained

Defendant Pullings to continue to work on the crisis hotline annually from 1990 through

1995 without any posting or bidding process. Plaintiff alleges Defendants prevented her

from participating in the crisis hotline in retaliation for her public and private complaints

about Defendants.

                                               III.

       We must first determine whether Plaintiff’s complaint sufficiently alleges facts

that, if proven, would constitute a First Amendment retaliation claim. To determine

whether a plaintiff has stated a First Amendment retaliation claim, we apply a four part


                                                5
test derived from Pickering v. Board of Educ., 391 U.S. 563 (1968). Lybrook v.

Farmington Mun. Sch., 232 F.3d 1334, 1338 (10th Cir. 2000). “First, we must determine

whether the employee’s speech involves a matter of public concern.” Dill v. City of

Edmond, 155 F.3d 1193, 1201 (10th Cir. 1998). If the speech involves a matter of public

concern, “we then balance the employee’s interest in commenting upon matters of public

concern against the interest of the State, as an employer, in promoting the efficiency of

the public services it performs through its employees.” Id. Third, if the balance “tips in

favor of the employee, the employee must then show that the speech was a substantial or

motivating factor in the detrimental employment decision.” Id. at 1201-02. Finally, if the

plaintiff establishes that speech was such a factor, “the employer may demonstrate that it

would have taken the same action against the employee even in the absence of the

protected speech.” Id. at 1202.

       In her complaint, Plaintiff alleges that she exercised her First Amendment right to

speak by filing a complaint with the New Mexico Human Rights Commission alleging

national origin discrimination. Plaintiff further alleges Defendants refused to allow

Plaintiff to participate in the crisis hot line in retaliation for Plaintiff’s exercise of her

First Amendment rights. Defendants do not dispute that Plaintiff’s speech regarded a

matter of public concern. Instead, Defendants simply argue that Plaintiff raises a state

claim of retaliation. According to Defendants, because the New Mexico Human Rights

Act, N.M. Stat.Ann. § 28-1-(7)(I)(2), prohibits retaliation against any person for filing a


                                                 6
complaint with the New Mexico Human Rights Commission, Plaintiff raises only a state

law retaliation claim.

       Contrary to Defendants’ argument, Plaintiff’s allegations sufficiently raise an

inference that Defendants retaliated against Plaintiff because of her speech in violation of

the First Amendment. See Dill, 155 F.3d at 1204. Because Defendants misunderstand

Plaintiff’s claim and argue that Plaintiff has raised only a state law retaliation claim,

Defendants in their briefs fail to address any of the Pickering factors for evaluating First

Amendment claims.1 Defendants do not dispute Plaintiff’s characterization of her speech

as a matter of public concern. In addition, we have held that “an employee’s First

Amendment rights may not be restricted ‘unless the employer shows that some restriction

is necessary to prevent the disruption of official functions or to insure effective

performance by the employee.’” Id. at 1203 (quoting Schalk v. Gallemore, 903 F.2d 491,

496 (10th Cir. 1990)). By failing to address the Pickering factors, Defendants have failed

to meet their burden of showing that Plaintiff’s speech disrupted Defendants’ official

functions. Id.

       Further, Plaintiff alleges that her speech was a “substantial or motivating factor in

the detrimental employment action.” See Dill, 155 F.3d at 1204. Again, Defendants fail

to dispute this characterization and instead continue to argue any retaliation violated state


       1
        In the absence of legal argument and support, we “are wary of becoming
advocates who . . . make a party’s case for it.” Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 672 (10th Cir. 1998).

                                               7
rather than federal law. “Finally, viewing the facts alleged in the complaint in the light

most favorable to Plaintiff, as we must, we can draw no inference of disruptive

consequences arising from Plaintiff’s speech, nor may we conclude that Defendants

would have taken the same action against Plaintiff in the absence of the protected

speech.” Id. at 1204.2

       Because Plaintiff’s complaint states a First Amendment claim, we must next

determine whether Defendants’ conduct violated a clearly established right. Id.

Specifically, we must decide whether, from 1989 through 1995, when Defendants

allegedly refused to allow Plaintiff to participate in the crisis hotline, “the protected status

of Plaintiff’s speech was sufficiently clear that Defendants reasonably should have been

on notice that their actions would violate Plaintiff’s First Amendment rights.” Id.3

       A public employer “cannot ‘condition public employment on a basis that infringes

the employee’s constitutionally protected interest in freedom of expression.’” Lybrook,

232 F.3d at 1338 (quoting Connick v. Myers, 461 U.S. 138, 142 (1983)). Thus, at the

time of the alleged events, it was “firmly established that ‘a public employer cannot

retaliate against an employee for exercising [her] constitutionally protected right of free

       2
         We note that Defendants have the burden of demonstrating disruptive effects and
showing that they would have taken the same action against Plaintiff even without the
protected speech. Id. at 1204 n.5. As stated above, however, by failing to address any of
the Pickering factors, Defendants have failed to meet this burden.
       3
          Again, because Defendants simply argue that Plaintiff has raised only a state law
retaliation claim, Defendants fail to address whether Plaintiff’s First Amendment rights
were clearly established.

                                               8
speech.’” Id. (quoting Dill, 155 F.3d at 1202)). The relevant precedent clearly establishes

that employment action short of discharge may give rise to First Amendment claims.

Dill, 155 F.3d at 1205 (discussing Supreme Court, Tenth Circuit, and other circuit

precedent). In light of the facts set forth in the complaint and the extensive preexisting

case law, we conclude that Defendants should have known that preventing Plaintiff from

participating in the crisis hotline in retaliation for Plaintiff’s speech would be

unconstitutional. Accordingly, we determine that the trial court was correct.

       AFFIRMED.

                                            Entered for the Court,



                                            Bobby R. Baldock
                                            Circuit Judge




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