                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 16 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    RON WILLIAMSON,

                Plaintiff-Appellant,

    v.                                                    No. 98-6462
                                                    (D.C. No. 98-CV-206-L)
    CITY OF EDMOND,                                       (W.D. Okla.)

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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. 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.
       Ron Williamson was terminated from his position as a fire marshal for the

City of Edmond for using a profane epithet toward a coworker. In response, he

brought this action pursuant to 42 U.S.C. § 1983 against the City alleging that the

City terminated his employment in violation of his rights to free speech and due

process guaranteed by the First and Fourteenth Amendments of the Constitution.

On cross-motions for summary judgment, the district court determined that the

speech for which Williamson was terminated was not protected by the First

Amendment and that his due process rights were not violated. Accordingly, it

granted summary judgment in the City’s favor. Williamson appeals. We review

the district court’s grant of summary judgment de novo.       See Simms v. Oklahoma

ex rel. Dep’t of Mental Health & Substance Abuse Servs.       , 165 F.3d 1321, 1326

(10th Cir.), cert. denied , 120 S. Ct. 53 (1999).

       Because this appeal arises from a grant of summary judgment, we view the

facts, and draw inferences, in the light most favorable to Williamson.      See id. At

the time of his termination, Williamson was the City’s fire marshal, a high-

ranking position immediately beneath the fire chief, and he had worked for the

City’s fire department for twenty-one years. The fire department is unionized,

and over the course of his employment, Williamson had made his anti-union

sentiments known to his coworkers.     1
                                           On December 23, 1997, Williamson was at

1
       Williamson was not a member of the union, but apparently was covered
                                                                   (continued...)

                                            -2-
one of the City’s fire stations and entered the office of Captain Charles Owen to

show him some photographs from a recent fire. Two other individuals, assistant

chief Arnie Postier and firefighter David Billen, were also in or near Owen’s

office. While Williamson was in Owen’s office, the subject of a new union

contract came up. In his deposition, Williamson explained what occurred as

follows:


      A. So I went in to show him the photographs. And as I was showing
      them to him, he pulled the contract, the pay plan. Everyone knew
      that I was displeased with it. [2]

      ...

      Q. All right, and when you were in his office, you said he had a copy
      of the pay plan?

      A. Apparently. He pulled the thing over and said, did you see how
      much we’re making or I don’t recall the exact words, but something
      to that effect, how much money, the raise that I got.

      Q. Did you get a raise as a result of the contract?

      A. Yes, I did.

      Q. Okay. And what did you say?


1
 (...continued)
under the union contract.
2
       Williamson had earlier explained that he did not like the pay plan in the
union contract because firefighters were paid more than their direct supervisors
and because a captain working in the fire suppression command made more than a
major in his command, which was fire prevention.    See Appellant’s App. Vol. I at
129-30.

                                        -3-
      A. I said oh gosh, I’ve seen it.

      Q. And go ahead and tell me what else happened.

      A. There was a bit of a snicker, look at this money, I make more
      than, I make as much as you do or some comments to that effect.

      Q. This is what Charles Owen said?

      A. Yes.

      Q. Tell me, as best you can, exactly what he said to you at that time.

      A. Again, I don’t recall because to me it wasn’t important. It wasn’t
      something that would come up later. I had made no, I have no
      recollection of exactly what he said. But it was something to the
      effect of hey, look at this, how much money we’re making. Look
      how much money I get.

             And being irritated over the thing, I said well yeah, of course,
      you union people. And then we had a brief discussion about unions
      and I said well, you’re just a bunch of--I love firemen individually, I
      said but collectively as a group, and forgive me for the language, but
      I said you’re a bunch of communist cock suckers.

            And I assume he took that very offensively and Arnie Postier
      was there. And I asked him--I don’t recall. That was the comment
      that Charlie took offensively.

Appellant’s App. Vol. I at 132-33.

      After learning about the incident from a statement prepared by Owen, fire

department chief Dwight Maker discussed the incident with city manager Leonard

Martin and human resources director Roberta Smith. Maker, Martin and Smith

decided that some type of disciplinary action would be appropriate, and Smith

notified Williamson of a “pre-determination hearing” to be held on January 8,

                                         -4-
1998, “to determine whether a recommendation for termination or another form of

discipline should be made to the City Manager.”     Id. at 403. The notice indicated

that the hearing would be informal, stated that Williamson had a right to be

represented, and told him to be prepared to present information regarding the

allegations made against him for “[i]ndulging in verbal and offensive conduct

towards City employees [and c]reating an intimidating, hostile and offensive

working environment among employees in the Fire Department.”        Id. The

decisionmakers at the hearing were Maker and Smith, and Williamson appeared

without representation. No one else appeared. Following the hearing, Maker and

Smith recommended to city manager Martin that Williamson be terminated for the

reasons stated in the hearing notice. Martin accepted their recommendation and

terminated Williamson effective January 12, 1998.

      Williamson then filed this action. He contends that his speech--calling

Owen a communist cocksucker     3
                                    --while concededly profane, was nonetheless on a

matter of public concern because he was generally speaking about unions, and

therefore his speech was protected by the First Amendment. He also contends

that the City deprived him of his property interest in continued employment and

his liberty interest in preserving his reputation without due process. In particular,


3
       Williamson has indicated alternatively that he directed his epithet at Owen
in particular and/or union members in general. For purposes of our analysis, it
does not matter whether he was referring only to Owen or to all union members.

                                            -5-
he contends that the city did not provide an impartial tribunal at his hearing

because Maker and Smith were biased against him and in favor of the union and

Owen. He also contends that he was denied his right to cross-examine the

witnesses (Owen, Postier and Billen) who gave statements against him. Finally,

he claims that his reputation was stigmatized because the City disseminated

damaging information published on local newspapers regarding his termination.

      The district court rejected Williamson’s First Amendment claim on the

basis that his speech was about a matter of only private concern--the amount of

money he was being paid--rather than about a matter of public concern.

Alternatively, the court held that even if his speech could be considered to be

addressing a matter of public concern, the speech was disruptive to the fire

department, and the City’s interest in the effective operation of its fire department

outweighed any interest that Williamson had in expressing his dissatisfaction with

the pay plan through personal invective. Regarding his due process claims, the

court determined that he had a protected property interest in continued

employment that was subject to due process protections. It then found that he had

not demonstrated that Maker or Smith were impermissibly biased decisionmakers

and concluded that due process did not require that he be allowed the right to

cross-examine the individuals who made statements against him. The court also

concluded that he did not state a valid liberty interest claim because he had not



                                         -6-
shown that any City official had made any statement regarding his termination,

much less a false one.


                               First Amendment Claim

       A government employer “cannot condition public employment on a basis

that infringes the employee’s constitutionally protected interest in freedom of

expression.”   Connick v. Myers , 461 U.S. 138, 142 (1983). “Thus, a public

employer cannot retaliate against an employee for exercising his constitutionally

protected right of free speech.”   Dill v. City of Edmond , 155 F.3d 1193, 1201

(10th Cir. 1998). Our analysis of Williamson’s claim begins with determining

whether he engaged in protected speech, and the first step in that analysis is to

determine whether his speech addressed a matter of public concern.       See Connick ,

461 U.S. at 146; Dill , 155 F.3d at 1201. Whether speech is protected is a

question of law.   See Connick , 461 U.S. at 148 n. 7;   Curtis v. Oklahoma City Pub.

Sch. Bd. of Educ. , 147 F.3d 1200, 1211 (10th Cir. 1998).

       “Matters of public concern are those of interest to the community, whether

for social, political or other reasons. Matters solely of personal interest to

government employees, however, are not protected by the First Amendment.”

Dill , 155 F.3d at 1202 (citation omitted). “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 , 461

                                           -7-
U.S. at 147-48. The employee’s motive--that is, “whether the speaker’s purpose

was to bring an issue to the public’s attention or to air a personal grievance”-- is

important to this determination.    See Moore v. City of Wynnewood , 57 F.3d 924,

932 (10th Cir. 1995). Williamson contends his speech was “on the subject of

Union matters[, and] Labor Unions and their activities are, without question,

matters of public concern.” Appellant’s Br. at 13;      see also id. at 14-18

(identifying evidence indicating that conversation was “about” or “concerning”

the union).

       We reject Williamson’s general contention that speech commenting “on the

subject of Union matters” is, by itself, enough to make it a matter of public

concern. While matters involving labor unions may be of some public interest, to

be protected, speech must do more than just generally relate to a matter of public

interest; it must also be sufficiently informative to be useful to the public in

evaluating government conduct.       See Moore , 57 F.3d at 932. Thus, “[i]n order for

a public employee’s speech to be of public concern, . . . it is not always enough

that its subject matter could in [certain] circumstances, [be] the topic of a

communication to the public that might be of general interest. What is actually

said on that topic must itself be of public concern.”    Koch v. City of Hutchinson ,

847 F.2d 1436, 1445 (10th Cir. 1988) (en banc) (quotation and citations omitted;

emphasis in original).



                                             -8-
       Turning to what Williamson actually said, we note initially that the record

does not support his claim he stated that “he believed the contract was a waste of

tax payer’s money and that the citizens of Edmond should know what the contract

provided.” Appellant’s Br. at 11. While he did state generally in his deposition

that this was his view, and such speech might be considered a matter of public

concern, see, e.g. , Curtis , 147 F.3d at 1212 (exposing improper operations of

government generally matter of public concern), there is no evidence that he made

any similar statement in his conversation with Owen.

       What the evidence does show is that he was “irritated” by the pay plan and,

in particular, by the fact that Owen earned as much as he did,     see Appellant’s

App. Vol. I at 133 (Williamson’s deposition); that he might institute some type of

lawsuit against the union “to make them pay for what they had done to him,”          see

id. at 81 (Billen’s statement), 78 (Owen’s statement); and that he personally was

treated unfairly by the latest contract negotiation,   see id. at 81 (Billen’s

statement). These comments concerning his personal salary and treatment by the

union cannot reasonably be seen as being on matters of public concern; they

illustrate only his personal dissatisfaction with the union contract and union

members. Moreover, even were we to consider his more general “irritation” with

or opposition to the pay plan, due to what he claims is the unfair treatment of

supervisors generally and his command in particular, we would view this not as a



                                              -9-
matter of public concern, but only a matter relating only to internal operations of

the fire department.   See David v. City & County of Denver      , 101 F.3d 1344, 1355

(10th Cir. 1996) (“[S]peech relating to internal personnel disputes and working

conditions ordinarily will not be viewed as addressing matters of public

concern.”).

       We therefore agree with the district court that Williamson failed to

demonstrate that his speech was on a matter of public concern.      4
                                                                        Because his free

speech claim fails on that basis, we need not address the district court’s

alternative holding regarding the balancing of the parties’ interests.


                                Due Process Claims     5




4
        Like the district court, we do not consider the fact that Williamson’s speech
contained the profane epithet for which the City terminated him, but instead look
to the content of his expression.     Cf. Rankin v. McPherson , 483 U.S. 378, 387
(1987) (“The inappropriate or controversial character of a statement is irrelevant
to the question whether it deals with a matter of public concern.”). Williamson’s
heavy emphasis in his brief on Cohen v. California , 403 U.S.15 (1971), where the
Court found the phrase “Fuck the Draft” on a jacket worn in a public place to be
protected speech, is therefore irrelevant. Moreover,     Cohen , which involved a
restriction on the public’s rather than an employee’s right to speak, does not
support Williamson’s claim, as the Court has since noted that “we have never
expressed doubt that a government employer may bar its employees from using
Mr. Cohen’s offensive utterance to members of the public or to the people with
whom they work.” Waters v. Churchill , 511 U.S. 661, 672 (1994) (plurality
opinion).
5
      In its response brief on appeal, the City adopted the parts of the district
court’s order rejecting Williamson’s due process arguments rather than providing
any appellate argument itself. Williamson contends that in light of this failure to
                                                                       (continued...)

                                          -10-
      The district court determined, ironically, that the union contract gave

Williamson a property interest in his continued employment by requiring that he

could be disciplined only for just cause, and that he therefore was entitled to due

process before he could be terminated.      See, e.g. , Cleveland Bd. of Educ. v.

Loudermill , 470 U.S. 532, 538 (1985). “The fundamental requirement of due

process is the opportunity to be heard at a meaningful time and in a meaningful

manner.” Mathews v. Eldridge , 424 U.S. 319, 333 (1976) (quotation omitted).

Citing Melton v. City of Okla. City , 879 F.2d 706, 721 (10th Cir. 1989),     modified

in part on other grounds on reh’g en banc     , 928 F.2d 920 (10th Cir. 1991),

Williamson argues that in this situation, the process he was entitled to included

“(1) an impartial tribunal; (2) notice of the charges; (3) a pre-termination hearing;

and (4) the right to confront and cross-examine one’s accusers.” Appellant’s Br.

at 30. He claims he was not provided the first and last of these requirements.

      Williamson contends that the tribunal, comprised of fire chief Maker and

human resources director Smith, was not impartial because Maker is Owen’s

brother-in-law and past business partner, Maker talked to Owen about the incident


5
 (...continued)
rebut his appellate arguments, we must reverse the district court and order that
summary judgment be granted in his favor on his due process claims. While we
believe the City’s appellate strategy to be very ill-advised,     see Hernandez v.
Starbuck , 69 F.3d 1089, 1094 n.3 (10th Cir. 1995), Williamson’s contention that
we are obligated to reverse the district court’s judgment is incorrect,    see id. at
1093-94.

                                            -11-
before the hearing, and Smith’s son and daughter are both union members

working for the City. He also contends that Maker made up his mind before the

hearing that Williamson should be terminated, as did city manager Martin, who

approved the termination.

       An impartial tribunal, that is, one not “biased with respect to the factual

issues to be decided at the hearing,” is an integral part of due process.      Patrick v.

Miller , 953 F.2d 1240, 1245 (10th Cir. 1992) (quotation omitted). However,

“‘[b]ecause honesty and integrity are presumed on the part of a tribunal, there

must be some substantial countervailing reason to conclude that a decisionmaker

is actually biased with respect to factual issues being adjudicated.’”       Tonkovich v.

Kansas Bd. of Regents , 159 F.3d 504, 518 (10th Cir. 1998) (quoting         Mangels v.

Pena , 789 F.2d 836, 838 (10th Cir. 1986)). We agree with the district court that

Williamson has failed to make the “substantial showing,”         see id. , necessary to

overcome the presumption. He has presented no evidence of actual bias, and the

familial and past business relationships are inadequate to show bias on their own.

Maker (and Martin) stated that they were inclined, based on what they knew at the

time, toward termination prior to the hearing, but this does not make them

incapable of rendering an impartial judgment.        See Withrow v. Larkin , 421 U.S.

35, 47-49, 55 (1975) (fact that same individuals who investigated later

adjudicated charges brought as a result of investigation, without more, does not



                                             -12-
show lack of impartial tribunal);   Mangels , 789 F.2d at 838. Contrary to

Williamson’s contention, Maker stated that he did not finally decide that

Williamson should be terminated until after the hearing. We thus reject his claim

that the tribunal was biased against him.

       Williamson also claims he was denied his right to cross-examine the

individuals who gave statements against him. While cross-examination is often

considered one of the procedures necessary for due process,    see, e.g. , Tonkovich ,

159 F.3d at 517-18; West v. Grand County , 967 F.2d 362, 369 (10th Cir. 1992),      6



we conclude that Williamson has not shown that he was denied due process here.

Nothing in the record indicates that he ever asked for the opportunity to

cross-examine his accusers, nor is there any indication that the City prohibited

him from doing so, or would have denied his request if he had made one.        See id.

(finding no violation of due process resulting from lack of cross-examination

where plaintiff did not request witness’s presence at hearing and there was no

suggestion she was restricted from doing so). Moreover, he has not attempted to

explain what cross-examination here would have accomplished.         See Meder v.

City of Okla. City , 869 F.2d 553, 555 (10th Cir. 1989) (finding no denial of due

6
        Cross-examination is generally considered a due process requirement at
full-blown post -termination hearings. See, e.g. , Tonkovich , 159 F.3d at 517-18.
The hearing about which Williamson complains was a      pre -termination hearing.
The parties do not explain whether there was any post-termination process
available to Williamson. We conclude he has not shown he was denied due
process regardless of the timing of the hearing.

                                          -13-
process where plaintiff failed to show “how confrontation and cross-examination

would have changed” the result of the hearing). Williamson has not identified

what facts were in dispute, and, indeed, admitted using the profanity aimed at

Owen for which he was terminated. Under these circumstances, Williamson

cannot complain of his inability to cross-examine the individuals who gave

statements against him.

       Finally, Williamson contends that the district court erred in rejecting his

claim that the City denied him his liberty interest in his reputation without due

process. To prevail on a liberty interest claim, Williamson had to prove the

publication of a defamatory statement tending to jeopardize employment

opportunities.   See, e.g. , Workman v. Jordan , 32 F.3d 475, 481 (10th Cir. 1994).

Critically, he had to prove that the City published the allegedly defamatory

statement. See Tonkovich , 159 F.3d at 526; cf. id. at 518 (noting that § 1983 itself

contains causation requirement). The district court rejected this claim because the

evidence showed that only Williamson himself, and not any City officials,

publicized any statements regarding his termination. Williamson does not argue

that the court erred in its assessment of the evidence, and we will not make his

argument for him.    See Hernandez , 69 F.3d at 1093.


                                     Conclusion




                                          -14-
      The district court correctly held that Williamson had not demonstrated that

his speech was protected by the First Amendment, or that the City had denied him

his right to due process. Accordingly, the district court properly granted summary

judgment to the City.

      AFFIRMED.



                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




                                       -15-
