                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-3163
                                  ___________

Roger Koehn,                         *
                                     *
             Appellant,              *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * Southern District of Iowa
Indian Hills Community College;      *
James Lindenmayer,                   *
                                     *
             Appellees.              *
                                ___________

                            Submitted: April 15, 2004

                                 Filed: June 9, 2004
                                  ___________

Before WOLLMAN, McMILLIAN and RILEY, Circuit Judges.
                         ___________

McMILLIAN, Circuit Judge.

      Roger Koehn appeals from a final order entered in the United States District
     1
Court for the Southern District of Iowa granting summary judgment in favor of
Indian Hills Community College (IHCC) and James Lindenmayer (together
defendants) on his claims alleging wrongful discharge in violation of the First
Amendment and state public policy. Koehn v. Indian Hills Community College,


      1
        The Honorable Ronald E. Longstaff, Chief Judge, United State District Court
for the Southern District of Iowa.
No. 4-02-CV-10273 (S.D. Iowa Aug. 5, 2003) (hereinafter “slip op.”). For reversal,
Koehn argues that the district court erred in holding as a matter of law that Koehn did
not engage in speech that is protected by the First Amendment or protected by a
clearly defined public policy under Iowa law. For the reasons stated below, we affirm
the order of the district court.

      Jurisdiction in the district court was proper based upon 28 U.S.C. §§ 1331,
1367(a). Jurisdiction on appeal is proper based upon 28 U.S.C. § 1291. The notice
of appeal was timely filed pursuant to Fed. R. App. P. 4(a).

       IHCC is a public employer. Lindenmayer was at all relevant times the Vice
President of Personnel and Administration at IHCC. Koehn began working at IHCC
as a night shift custodian in March 1984. As of July 12, 2001, Koehn was an
employee in good standing at IHCC and, on that date, was offered a continuation of
his “at will” employment with a standard increase in salary and benefits, subject to,
among other things, his continued satisfactory job performance. On August 9, 2001,
in compliance with state law, IHCC published in a local newspaper its annual
statement of disbursements, including a list of IHCC employees and their salaries.

       In the early morning hours of August 24, 2001, Koehn was working the night
shift at IHCC. He had with him the August 9, 2001, newspaper which contained the
IHCC annual statement of disbursements. At approximately 1:30 a.m., Koehn and
two other night shift custodians were taking a regular meal break together, and they
examined the employee salary list in the newspaper that Koehn had brought to work.
One of them highlighted the salaries of numerous IHCC employees of interest to
them, including some of the custodial staff and supervisors. Shortly thereafter, an
assistant custodial supervisor on the night shift entered the room and saw the
highlighted list. Upon seeing that his compensation was less than several other night
shift custodians, he became upset. Another supervisor learned about the incident and
reported it to Lindenmayer. Lindenmayer discussed the matter with some of the

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custodians and then decided to terminate Koehn. At the time of his termination,
Koehn was told by Lindenmayer that he was an “antagonist” and that his services
were no longer needed.

       Koehn filed a “prohibited practices complaint” with the Iowa Public
Employment Relations Board (PERB), alleging that IHCC terminated him for
exercising rights granted under the Iowa Public Employment Relations Act.2 While
that matter was pending before the PERB, Koehn filed the present action in federal
court, pursuant to 42 U.S.C. § 1983, alleging that defendants’ actions violated his
constitutional right to free speech (Count I) and violated state public policy (Count
II). Defendants moved for summary judgment on both counts, and the district court
granted their motion. This appeal followed.

       We review a grant of summary judgment de novo. The question before the
district court, and this court on appeal, is whether the record, when viewed in the light
most favorable to the non-moving party, shows that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Where the unresolved
issues are primarily legal rather than factual, summary judgment is particularly
appropriate. See Crain v. Board of Police Comm'rs, 920 F.2d 1402, 1405-06 (8th Cir.
1990).

      Upon de novo review, we agree with the district court that, although the IHCC
employee salary list could be viewed as a topic of public interest or concern, the
evidence showed beyond dispute that Koehn was “speaking solely as an
employee–and not as a concerned taxpayer” when he engaged in a conversation with
co-workers during a break regarding various IHCC employees’ salaries. Slip op. at


      2
       The PERB subsequently dismissed Koehn’s complaint. See slip op. at 3.

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8. As the district court noted, Koehn did not question the salaries as a misuse of
public funds, call for reforms in the method of determining salaries, or otherwise
voice any criticisms or concerns about the published salaries. Id. at 8-9.
Accordingly, the district court concluded as a matter of law that Koehn did not
engage in constitutionally protected speech. We agree with the district court’s
conclusion. See, e.g., Tuttle v. Missouri Dep’t of Agric., 172 F.3d 1025, 1033-34 (8th
Cir.) (affirming judgment as a matter of law for the defendants on the plaintiff’s claim
that he was terminated in violation of his right to free speech; holding that, although
the plaintiff had engaged in speech addressing salaries, promotions, and safety issues,
that speech was not constitutionally protected because the plaintiff “was speaking out
as an employee, not as a concerned citizen”), cert. denied, 528 U.S. 877 (1999).

       Regarding Koehn’s state law claim, the district court recognized that, even
though Koehn was an at-will employee, he may recover on a claim for wrongful
discharge under Iowa law if he can establish, among other things, that his termination
violated a clearly defined public policy of the state. See, e.g., Davis v. Horton, 661
N.W.2d 533, 535-36 (Iowa 2003) (an at-will employee asserting wrongful discharge
based on violation of public policy must establish, among other things, that the
discharge was the result of engaging in an activity that is protected by a clearly
defined public policy); Teachout v. Forest City Community School Dist., 584 N.W.2d
296, 299-300 (Iowa 1998) (“the employee’s activity must advance a well-recognized
and defined public policy of the state”). Koehn describes the pertinent public policy
as follows: “Iowa law clearly promotes the free dissemination of information
regarding government spending and promotes citizen knowledge and discussion of
public expenditures.” Brief for Appellant at 28. The district held, and we agree, that
Koehn’s state law public policy claim fails as a matter of law for the same reason that
his First Amendment claim fails as a matter of law. When Koehn conversed with co-
workers about IHCC employee salaries, he was speaking merely as an employee, not
as a citizen or taxpayer advancing the dissemination of information or public



                                          -4-
discourse regarding government spending. In sum, Koehn cannot establish that he
engaged in an activity protected by a clearly defined public policy under Iowa law.

      The order of the district court is affirmed.
                      ______________________________




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