                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                       January 23, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
SUSAN CVANCARA,

      Plaintiff - Appellant,

v.                                                         No. 16-1093
                                               (D.C. No. 1:14-CV-03106-RM-CBS)
STEVE REAMS,                                                (D. Colo.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, GORSUCH, and MATHESON, Circuit Judges.
                  _________________________________

      Susan Cvancara appeals from the district court’s entry of summary judgment

on her claim that she was fired from her job with the Weld County, Colorado,

Sheriff’s Office (WCSO) in retaliation for exercising her First Amendment

free-speech rights. We have jurisdiction under 28 U.S.C. § 1291 and affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.    BACKGROUND

      Ms. Cvancara worked as a victim’s advocate for the WCSO’s Victim Services

Unit (VSU) from 2005 until December 2013. In August 2013, Deborah Calvin was

hired to be Director of the VSU, a position Ms. Cvancara had held until she was

demoted in 2011 following a series of warnings and discipline for her behavior,

which included spreading rumors and making disparaging comments about other

employees.

      At the time she became the full-time VSU Director, Ms. Calvin was a realtor,

and she continued to work as a realtor while employed as the Director. Ms. Cvancara

soon became concerned that Ms. Calvin was attending to her real estate job while on

VSU time. Ms. Cvancara expressed that concern to Investigator David Porter and

also complained to him that Ms. Calvin was changing policies in a manner that

disproportionately shifted work away from her and onto Ms. Cvancara, who was the

only other paid victim advocate, and that Ms. Calvin was hired to be the VSU

Director due to political connections. Investigator Porter told Ms. Cvancara to

address the issues by following her chain of command. Ms. Cvancara also relayed

some concerns about Ms. Calvin (precisely which ones are unclear from the record)

to WCSO Commander Ed Haffner who, like Investigator Porter, was not in her chain

of command.

      Investigator Porter relayed Ms. Cvancara’s statements to another commander,

who informed Sergeant Peter Wagoner. Sergeant Wagoner and Ms. Calvin then met

with Ms. Cvancara, who claimed she had discussed her concerns about Ms. Calvin’s

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policy changes only with Commander Haffner, did not know Ms. Calvin was

politically connected, and had not discussed with anyone whether Ms. Calvin was

working her real estate job while on county time. The next day, Ms. Cvancara

submitted a written statement to Sergeant Wagoner in which she made the same

claims. When Sergeant Wagoner met with Ms. Cvancara a few days later, she

initially repeated that she had spoken only to Commander Haffner about the policy

changes, but after Sergeant Wagoner said he knew that was not true and that he had

gotten information from Investigator Porter, Ms. Cvancara admitted the truth.

      Sergeant Wagoner prepared a written report finding that Ms. Cvancara had

violated orders by not adhering to her chain of command when expressing concerns

about the policy changes and had violated various WCSO policies and Weld County

Code provisions concerning truthfulness, acceptance of responsibility, and

insubordination. His report was passed up the chain of command to the Sheriff who,

in light of Ms. Cvancara’s disciplinary history, fired Ms. Cvancara for

insubordination and lack of candor.1

      In this lawsuit, Ms. Cvancara asserted a claim under 42 U.S.C. § 1983 that the

Sheriff violated her First Amendment right to freedom of speech because he fired her

for speaking out on a matter of public concern. The Sheriff moved for summary

judgment, which the district court granted on the ground that Ms. Cvancara’s speech

      1
        At the time, the Weld County Sheriff was John Cooke. Because
Ms. Cvancara sued Sheriff Cooke in his official capacity only, he was replaced as the
defendant in this action by the present Sheriff, Steve Reams. We will simply refer to
the defendant as the Sheriff.

                                          3
was not protected because it did involve a matter of public concern. In reaching that

decision, the district court considered and granted in part the Sheriff’s motion to

strike portions of Ms. Cvancara’s affidavit. However, the court also determined that

its ruling on the motion to strike was “largely irrelevant” because, in responding to

the Sheriff’s statement of undisputed material facts, Ms. Cvancara had failed to

follow the court’s standards of practice concerning citation to supporting evidence

and therefore had not properly presented any of the facts she had attested to in her

affidavit. 3 Aplt. App. at 597.

      Ms. Cvancara appeals, arguing the district court (1) misapplied the summary

judgment standard, (2) erroneously concluded that her speech did not involve a

matter of public concern, and (3) erred in striking or otherwise refusing to consider

statements in her affidavit.

II.   STANDARD OF REVIEW

      “We review the district court’s grant of summary judgment de novo, applying

the same standards that the district court should have applied.” Fields v. City of

Tulsa, 753 F.3d 1000, 1008 (10th Cir. 2014) (internal quotation marks omitted). A

“court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “[W]e examine the record and all reasonable inferences

that might be drawn from it in the light most favorable to the nonmoving party.”

Fields, 753 F.3d at 1009 (internal quotation marks omitted).



                                           4
III.   DISCUSSION

       A. Application of summary judgment standard

       In his motion for summary judgment, the Sheriff argued he was entitled to

judgment as a matter of law because the undisputed evidence revealed that

Ms. Cvancara could not establish the first and third prongs of the five-pronged

“Garcetti/Pickering” test applicable to retaliation claims brought under the First

Amendment’s free-speech clause.2 Those prongs are:

       (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.
Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009). The district court

rejected the Sheriff’s arguments on the first and third prongs and instead granted

summary judgment based on the second prong—that Ms. Cvancara’s speech was not

“on a matter of public concern.” Ms. Cvancara claims that in considering and

deciding her case based on a prong the Sheriff did not raise, the district court

improperly relieved him of his initial burden to demonstrate an absence of any

genuine issue of material fact and impermissibly shifted the burden to Ms. Cvancara

to prove there were no genuinely disputed issues of material fact as to the

public-concern prong.

       2
        The test draws its name from Garcetti v. Ceballos, 547 U.S. 410 (2006), and
Pickering v. Board of Education, 391 U.S. 563 (1968).

                                              5
      We are not persuaded. Generally, a party moving for summary judgment is

charged with telling the district court the basis for its motion. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). But in Johnson v. Weld County, 594 F.3d 1202,

1214 (10th Cir. 2010), we approved a grant of summary judgment on a claim not

raised in a defendant’s opening summary-judgment brief where the plaintiff

“marshaled and outlined the evidence supporting her claim” in her response brief,

there was no indication the plaintiff was prevented “from offering additional

evidence or argument to defend her claim,” and the plaintiff did not identify on

appeal any “way in which she was prejudiced by the district court’s chosen

procedural course.”

      Similarly here, the district court took up the public-concern issue only after

Ms. Cvancara argued in her summary-judgment response brief that her speech was on

a matter of public concern and pointed to evidence she claimed “established that her

speech [was] of public concern.” 2 Aplt. App. at 188. In his summary-judgment

reply brief, the Sheriff addressed the issue, arguing that there were no genuinely

disputed issues of material fact in the evidence properly before the court, and that

such evidence was insufficient for Ms. Cvancara to survive summary judgment.

Accordingly, the public-concern prong, which was a legal one for the court to decide,

see Dixon, 553 F.3d at 1302, was sufficiently developed for the court’s consideration,

and Ms. Cvancara has not complained that the manner in which the issue came to the

court’s attention prevented her from presenting evidence.



                                           6
        Ms. Cvancara characterizes the court’s conclusion that she “failed to establish”

the public-concern prong of the Garcetti/Pickering test, 3 Aplt. App. at 609, as an

improper requirement that she prove that prong. We disagree. The court’s use of the

phrase “failed to establish” may have been imprecise as a matter of

summary-judgment standards, but the court determined the evidence before it was

insufficient to support the public-concern prong. This was permissible because the

public-concern prong is an element of Ms. Cvancara’s claim and one on which she

was to bear the ultimate burden of persuasion at trial. See Trant v. Oklahoma,

754 F.3d 1158, 1166-67 (10th Cir. 2014) (noting that a plaintiff bears the burden of

proof on the first four Garcetti/Pickering prongs); Montes v. Vail Clinic, Inc.,

497 F.3d 1160, 1163 (10th Cir. 2007) (“Summary judgment follows when a moving

party points to the absence of factual support on an element essential to the

non-movant’s case, and on which the non-movant bears the burden of proof at

trial.”).

        In sum we see no unfair prejudice flowing from the district court’s decision to

consider the issue even though the Sheriff did not raise it first. Whether the district

court erred in determining there were no genuinely disputed issues of material fact

and in concluding that Ms. Cvancara’s speech was not on a matter of public concern

are separate questions we proceed to address.




                                            7
      B. Ruling that speech was not on a matter of public concern

      The district court determined that although “at first glance” Ms. Cvancara’s

speech to Investigator Porter3 appeared to be on a matter of public concern because

she spoke out about potential impropriety, a closer look at Ms. Cvancara’s statements

about Ms. Calvin’s alleged work as a real estate agent while on county time led to the

opposite conclusion. 3 Aplt. App. at 607. We agree.

      “Speech is on a matter of public concern if it involves a matter of interest to

the community.” Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1367 (10th Cir.

2015). “Whether an employee’s speech addresses a matter of public concern must be

determined by the content, form, and context of a given statement, as revealed by the

whole record.” Connick v. Myers, 461 U.S. 138, 147–48 (1983). “We consider the

motive of the speaker and whether the speech is calculated to disclose misconduct or


      3
         The district court confined its analysis to what Ms. Cvancara said to
Investigator Porter because she did not rely on what she may have told Commander
Haffner concerning Ms. Calvin’s alleged real estate activities. As noted earlier, what
she may have told Commander Haffner is unclear from the record. Indeed, on
appeal, Ms. Cvancara points only to a bare, undisputed fact that she spoke with
Commander Haffner, and a line of questioning at her deposition where the Sheriff’s
attorney inquired why she took her concern about Ms. Calvin’s alleged real estate
activity to Investigator Porter and Commander Haffner despite the fact that she had
no personal knowledge informing that concern and had previously been warned about
spreading rumors. The undisputed fact says nothing about the content of that
conversation, and the Sheriff’s attorney’s line of questioning cannot be taken as
evidence that Ms. Cvancara spoke to Commander Haffner about Ms. Calvin’s real
estate activities. The only other references to that conversation indicate that it
concerned only the policy changes Ms. Calvin had instituted, and Ms. Cvancara has
never argued that her speech on those changes is protected. But even if she spoke
with Commander Haffner about her concerns that Ms. Calvin was working as a
realtor on county time, our analysis of the public-concern prong would be the same.

                                           8
merely deals with personal disputes and grievances unrelated to the public’s interest.”

Nixon, 784 F.3d at 1367 (internal quotation marks omitted). “In particular, speech

that exposes official impropriety generally involves matters of public concern, while

speech that simply airs grievances of a purely personal nature typically does not.” Id.

at 1367–68 (internal quotation marks omitted).

       Further, “[s]peech 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.” Eisenhour v. Weber Cty., 744 F.3d 1220, 1228 (10th Cir.

2014) (brackets and internal quotation marks omitted). However, “[i]t is not

sufficient that the topic of the speech be of general interest to the public; in addition,

what is actually said must meet the public concern threshold.” Nixon, 784 F.3d

at 1368 (emphasis added) (internal quotation marks omitted).

       Here, the district court noted there was limited evidence properly before the

court of what Ms. Cvancara actually said to Investigator Porter because the only

evidence Ms. Cvancara presented consisted of some general facts about her

conversation with Investigator Porter, and the court declined to consider those facts

because of Ms. Cvancara’s failure to follow the court’s practice standard regarding

accurate citation. The court instead looked at what Investigator Porter described in a

written statement he submitted to his commander, which was simply that

Ms. Cvancara “believed [Ms. Calvin was] working a real estate job while working on



                                            9
the WCSO clock,” 1 Aplt. App. at 140. The court noted that this provided no

explanation for Ms. Cvancara’s belief and no evidence of her motive.

      But the court then considered, apparently in the alternative, facts it had said it

would not consider because of deficiencies in Ms. Cvancara’s affidavit and her

failure to follow the court’s practice standards concerning citation to the record.

Among those were that (1) soon after being hired, Ms. Calvin sent an email to other

victim advocates explaining she was also a realtor and providing a personal email

address; and (2) Ms. Cvancara said she had found Ms. Calvin’s real estate business

card in one of the county vehicles used by victim advocates and a camera containing

photos of a house that she thought were of the type a realtor might take in another

county vehicle, also used by victim advocates.4 The court concluded that even if

Ms. Cvancara had described these things to Investigator Porter, they would not be of

interest or concern to the public. Although the email was not presented to the court,

the court gleaned from the Sheriff’s deposition testimony that Ms. Calvin sent the

email to introduce herself to co-workers, and Ms. Cvancara admitted she did not

know who placed the business card in the car or who owned the camera, and that she

had no direct evidence that Ms. Calvin was working as a realtor on county time.

      4
        The district court also addressed other evidence Ms. Cvancara pointed to in
support of her contention that Ms. Calvin was impermissibly attending to her realtor
job while on county time, including (1) the fact that there was no investigation of
Ms. Calvin and (2) the testimony of a volunteer victim advocate that Ms. Calvin had
asked her to cover her responsibilities so she could attend a real estate meeting. The
court discounted this evidence because it was undisputed that Ms. Cvancara was not
aware of these facts at the time she spoke with Investigator Porter. We agree and
need not discuss those facts further.

                                           10
See Lee v. Nicholl, 197 F.3d 1291, 1295 (10th Cir. 1999) (explaining that “speech

must sufficiently inform the issue as to be helpful to the public in evaluating the

conduct of the government” (internal quotation marks omitted)). The court further

reasoned that the form and context of Ms. Calvin’s conversation with Investigator

Porter—an informal conversation between co-workers—supported the conclusion

that Ms. Cvancara was not motivated by broader public purposes but was instead

airing grievances.5

      We agree with the district court’s conclusion that Ms. Cvancara’s speech was

not on a matter of public concern. Based on the Sheriff’s description of Ms. Calvin’s

introductory email, which he looked at while being deposed, no reasonable inference

can be drawn that Ms. Calvin used her county email account to solicit real estate

business. Hence, even crediting Ms. Cvancara’s testimony that she had heard about

the email at the time she spoke with Investigator Porter, her statements to

Investigator Porter amounted to speculation based on a few weak bits of

circumstantial evidence (the business card and camera) that Ms. Calvin was attending

to her real estate job on county time. And further crediting Ms. Cvancara’s

contention that her motive was to expose potential misconduct, malfeasance, or

      5
         In support of its reasoning on form and context, the district court cited
Thayer v. City of Holton, 515 F. Supp. 2d 1198 (D. Kan. 2007), for its statement that
a “relatively private and informal setting and limited audience . . . are factors
suggesting that the comments were not matters of public concern,” id. at 1207.
However, we had earlier rejected the notion “that failure to speak publicly indicates
speech was not made on a matter of public concerns.” Lee, 197 F.3d at 1295. In
light of our ensuing analysis in this case, however, we need not determine whether
the district court erred in its form-and-context analysis.

                                           11
corruption, motive alone is insufficient to turn speech into a matter of public concern

where the content of the speech is speculation based on weak evidence. This is

because “[t]he interest at stake is as much the public’s interest in receiving informed

opinion as it is the employee’s own right to disseminate it.” City of San Diego v.

Roe, 543 U.S. 77, 82 (2004) (per curiam) (emphasis added). Ms. Cvancara’s

suspicions about Ms. Calvin were not sufficiently informed to be of public concern.

      C. Treatment of Ms. Cvancara’s evidence

      Ms. Cvancara takes issue with the district court’s decision to strike three

paragraphs from her affidavit and to otherwise not consider evidence she presented

without adhering to the court’s practice standard concerning accurate citation.

However, as we have seen, the district court ultimately considered that evidence and

concluded (correctly, in our view) that the evidence did not alter its conclusion that

Ms. Cvancara’s statements to Investigator Porter did not touch on a matter of public

concern. Accordingly, we see no need to address the issue.

IV.   CONCLUSION

      The judgment of the district court is affirmed.


                                            Entered for the Court


                                            Paul J. Kelly, Jr.
                                            Circuit Judge




                                           12
