                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                   PUBLISH
                                                                       MAR 11 1998
                    UNITED STATES COURT OF APPEALS
                             TENTH CIRCUIT                          PATRICK FISHER
                                                                            Clerk


 RICHARD C. LYTLE,

       Plaintiff-Appellant,

 v.
                                                      No. 96-3197
 CITY OF HAYSVILLE, KANSAS, a
 municipal corporation, and JAMES
 EARL KITCHINGS,

       Defendants-Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF KANSAS
                     (D.C. No. 93-CV-1322-KHV)


Jack Focht, Focht, Hughey & Calvert, L.L.C., Wichita, Kansas, for Plaintiff-
Appellant.

Alan L. Rupe, Morrison & Hecker, L.L.P., Wichita, Kansas, for Defendants-
Appellees.


Before KELLY, HOLLOWAY, and HENRY, Circuit Judges.


HENRY, Circuit Judge.


      Richard C. Lytle was employed as a police officer by the City of Haysville,

Kansas from 1983 until 1991, when he was discharged after alleging that fellow
Haysville officers committed second-degree murder by failing to render

emergency aid to the victim of a police shooting. He brought suit against the City

of Haysville and its police chief, James Earl Kitchings, contending that the

defendants had attempted to cover up police officers’ misconduct and that he had

been fired in retaliation for his allegations against them. The district court

granted summary judgment for the defendants, and Mr. Lytle appeals.

      We exercise jurisdiction under 28 U.S.C. § 1291. Because the important

factual issues in this case are in reality undisputed and because the district court’s

decision involves questions of law under the appropriate balancing tests, we

believe that this case is suited for summary judgment. For the reasons given

below, we affirm.

                                I. BACKGROUND

         Responding to a traffic disturbance on the evening of December 7, 1990,

Haysville police officer Luther Donald Meeks shot a Haysville resident, Datton

Wilson, Jr., in self-defense. Within seconds of the shooting, Officer Meeks

radioed the dispatcher to call emergency medical services. Lieutenant Bruce

Powers and Officers Lanon Thompson and Tim Stock, all of the Haysville Police

Department, appeared at the scene shortly thereafter.

      Before the Emergency Medical Technicians (EMTs) arrived, the officers

did not render emergency aid to Mr. Wilson. The officers had received


                                          2
instruction in cardiopulmonary resuscitation (CPR) as part of their law

enforcement training and had learned that they should not move or perform CPR

on critically injured persons who are still breathing, as Mr. Wilson was. The

EMTs arrived at the scene approximately six minutes after the shooting. They

administered CPR and transported Mr. Wilson to the nearest hospital, where he

was pronounced dead a short time later.

      Approximately an hour after the shooting, Mr. Lytle arrived at the scene.

By that time, the EMTs had already left with Mr. Wilson. According to his

deposition testimony, Mr. Lytle asked Lieutenant Powers if the officers had

performed CPR on Mr. Wilson before emergency medical personnel arrived. Mr.

Lytle stated that Lieutenant Powers told him that the officers had not performed

CPR because Mr. Wilson was, in Lieutenant Powers’s words, “dead or dying

anyway.” Aplt’s App. vol. I at 209 (Tr. of dep. of Mr. Lytle, dated Apr. 26,

1994). However, in two written reports concerning the Wilson investigation,

prepared on December 8 and December 9, 1990, Mr. Lytle did not mention the

“dead or dying” comment. See id. vol. II at 598-601.

      Several months after the shooting, Mr. Lytle had several telephone

conversations with Mr. Jerry Berg, an attorney for Mr. Wilson’s widow. At that

time, Mr. Lytle knew that Mr. Berg was demanding a grand jury investigation of

the shooting and threatening to sue the City. On April 27, 1991, Mr. Lytle gave a


                                          3
statement to Mr. Berg under oath. See Aplt’s App. vol. II at 620-93 (Tr. of April

27, 1991 statement).

      In his statement to Mr. Berg, Mr. Lytle explained that it was his wife who

had first contacted Mr. Berg because the shooting had been troubling her

husband. See id. at 624. Mr. Lytle then described his actions and observations on

the evening of the shooting. He said that when he first arrived at the scene,

Lieutenant Powers “just briefly told me what he wanted me to do, which was

interview Mrs. Wilson.” Id. at 628. Mr. Lytle said that he asked Lieutenant

Powers “if they had performed any type of CPR or anything on the victim and he

stated, no, he was going to die anyway.” Id. at 629. Mr. Lytle said that he “was a

little shocked because . . . that’s the first thing that should have been done,

somebody should have given [Mr. Wilson] CPR or at least applied direct pressure

to the wound.” Id.

      Within a week of the shooting, Mr. Lytle added, Officer Stock gave him the

same explanation as to why the officers had not performed CPR when they first

arrived at the scene: “Mr. Wilson was dying or dead anyway.” Id. at 638. Mr.

Lytle agreed with Mr. Berg that the job descriptions for Haysville police officers

required that “[i]f the victim is still alive, proper aid should be given.” Id. at 632.

According to Mr. Lytle, the officers should have followed this policy by giving

first aid to Mr. Wilson. When questioned by Mr. Berg, he stated that the officers’


                                           4
failure to render aid constituted second degree murder. Id. at 648-49.

      Mr. Lytle admitted to Mr. Berg that he was under orders not to discuss the

Wilson case. Id. at 633. Additionally, he stated that it would have been

appropriate for him to have talked to Chief Kitchings about his fellow officers’

statements and that he should have done so. Id. at 642.

      On May 15, 1991, Mr. Lytle testified before a grand jury of the Eighteenth

Judicial District of Kansas. An attorney from the law firm representing the City

of Haysville accompanied him, and Mr. Lytle gave him a transcript of the

statement to Mr. Berg. Around this time, Mr. Lytle also spoke with a reporter for

the Wichita Eagle newspaper. The newspaper ran articles that quoted Mr. Lytle

as saying that Powers, Thompson, and Stock were to blame for Mr. Wilson’s

death. The Haysville Pioneer, a local newspaper, also covered the Wilson

controversy.

      After reading about Mr. Lytle’s allegations in the newspaper and reviewing

his statement to Mr. Berg, Chief Kitchings investigated Mr. Lytle’s allegations

and determined that they were unsupported. The parties do not dispute that, after

the newspaper reports of Mr. Lytle’s allegations, morale in the Department

decreased significantly. Fellow officers distrusted Mr. Lytle and refused to speak

with him. Additionally, Mr. Lytle’s charges undermined public trust in the

Department, making law enforcement more difficult. See Aplt’s App. vol. I at


                                         5
90-123.

      On July 16, 1991, Chief Kitchings terminated Mr. Lytle’s employment.

The notice of termination cited Mr. Lytle’s breach of the Department’s

confidentiality rules, but did not discuss the effect of Mr. Lytle’s statements on

the functioning of the Department. See Aplt’s App. vol III at 964-66.

      After his dismissal, Mr. Lytle brought this suit against the City and Chief

Kitchings, alleging: (1) that his termination was in breach of an implied contract;

(2) that he was discharged in retaliation for speech protected by the First

Amendment (his statements to Mr. Berg and the press and his grand jury

testimony); and (3) that his dismissal violated state law against retaliation for

whistle-blowing. The defendants moved for summary judgment, and, during a

status conference, the district court orally granted their motion on all of Mr.

Lytle’s claims. As to the First Amendment claim, the district court granted

summary judgment for both defendants on the merits and for Chief Kitchings on

the additional and alternative ground of qualified immunity.



                                 II. DISCUSSION

      Mr. Lytle appeals the summary judgment granted against him on his First

Amendment and state-law retaliatory discharge claims. He does not appeal the

decision on his implied contract claim.



                                          6
                             A. Standard of Review

      We review a decision granting summary judgment de novo, under the same

legal standard applicable in the district court. See Miles v. Denver Pub. Sch., 944

F.2d 773, 775 (10th Cir. 1991). The de novo standard of review is appropriate in

this case for the further reason that: “[i]n cases raising First Amendment issues .

. . an appellate court has an obligation to make an independent examination of the

whole record in order to make sure that the judgment does not constitute a

forbidden intrusion on the field of free expression.” Rankin v. McPherson, 483

U.S. 378, 386 n.9 (1987) (quoting Bose Corp. v. Consumers Union of United

States, Inc., 466 U.S. 485, 499 (1984)) (internal quotation marks omitted).

Because the standard of review is de novo, we “may affirm on grounds other than

those relied on by the district court when the record contains an adequate and

independent basis for that result.” Cone v. Longmont United Hosp. Ass’n, 14

F.3d 526, 528 (10th Cir. 1994).

      Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

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.” Fed. R. Civ. P. 56(c); see also Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In deciding whether a

genuine issue of material fact exists, a court must draw all reasonable inferences


                                          7
in favor of the nonmoving party. See Anderson, 477 U.S. at 255.



                              B. Issues on Appeal


                              1. First Amendment

      Mr. Lytle first challenges the district court’s grant of summary judgment

against him on his First Amendment claim. He maintains that the court’s ruling

infringes on the constitutional rights of public employees who uncover

wrongdoing in governmental agencies.



                             a. Pickering balancing

      It is well-established that a government employer “cannot condition public

employment on a basis that infringes the employee’s constitutionally protected

interest in freedom of expression.” Connick v. Meyers, 461 U.S. 138, 142 (1983).

We undertake a four-part inquiry in order to evaluate a public employee’s claim

that his employer has infringed this interest. See Gardetto v. Mason, 100 F.3d

803, 811 (10th Cir. 1996).

      First, we consider whether the speech in question addresses a matter of

public concern. Matters of public concern are those of interest to the community,

whether for social, political, or other reasons. See Connick, 461 U.S. at 145-149.

In contrast, matters of only personal interest to government employees are not

                                        8
protected by the First Amendment. See id.

      Second, if the speech does address a matter of public concern, the court

must consider both employee’s interest in expression and the government

employer’s interest in regulating the speech of its employees in order to maintain

an efficient and effective workplace. See Gardetto, 100 F.3d at 811 (citing

Pickering v. Board of Education, 391 U.S. 563, 568 (1968)); Moore v. City of

Wynnewood, 57 F.3d 924, 931 (10th Cir. 1995). Speech is protected if the

employee’s interest outweighs the interest of the government employer. See

Moore, 57 F.3d at 931. This process of weighing the respective interests is

known as “the Pickering balancing test.”

      Third, if the speech is protected, the employee must show that the speech

was a substantial or motivating factor for the challenged governmental action.

See Gardetto, 100 F.3d at 811 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 287 (1977)). Finally, if the employee shows that the speech

was a substantial or motivating factor, the employer must be given the opportunity

to show that it would have taken the same action in the absence of the protected

speech. See id.

      The Supreme Court has explained why a public employee’s speech is not

given unqualified protection, but rather is balanced against the employer’s interest

in efficient public service:


                                           9
      Government agencies are charged by law with doing particular tasks.
      Agencies hire employees to help do those tasks as effectively and
      efficiently as possible. When [an employee] . . . begins to do or say
      things that detract from the agency’s effective operation, the
      government employer must have some power to restrain [him].

Waters v. Churchill, 511 U.S. 661, 674-75 (1994).

      Thus, “the government as employer . . . has far broader powers [over

speech] than does the government as sovereign.” Id. at 671. Outside government

workplaces, “[t]he First Amendment demands a tolerance of ‘verbal tumult,

discord, and even offensive utterance,’ as ‘necessary side effects of . . . the

process of open debate . . . .’” Id. at 672 (quoting Cohen v. California, 403 U.S.

15, 24-25 (1971)). Within government workplaces, however, the First

Amendment demands considerably less: “The government cannot restrict the

speech of the public at large just in the name of efficiency. But where the

government is employing someone for the very purpose of effectively achieving

its goals, such restrictions may well be appropriate.” Id. at 675.

      In balancing the employee’s interest in expression against the government’s

interest in efficiency, a court must consider “the manner, time, and place of the

employee’s expression,” as well as the events leading up to it. Rankin, 483 U.S.

at 388. It is relevant “whether the statement impairs discipline by supervisors or

harmony among co-workers, has a detrimental impact on close working

relationships for which personal loyalty and confidence are necessary, or impedes


                                          10
the performance of the speaker’s duties or interferes with the regular operation of

the enterprise.” Id. Additionally, an employee’s responsibilities in the workplace

are relevant to the Pickering balancing. See id.; Koch v. City of Hutchison, 847

F.2d 1436, 1449-50 (10th Cir. 1988) (en banc). “The burden of caution

employees bear with respect to the words they speak will vary with the extent of

authority and public accountability the employee’s role entails.” Rankin, 483

U.S. at 390.

      In the instant case, in conducting the required First Amendment inquiry, the

district court began by identifying the particular speech at issue. Although Mr.

Lytle’s complaint refers to three categories of allegedly protected speech--his

statements to Mr. Berg, his statements to the press, and his grand jury testimony--

the district court considered only the first two categories. It reasoned that the

defendants contended in their summary judgment motion that Mr. Lytle had not

been terminated for his grand jury testimony and that Mr. Lytle did not dispute

this contention in his objection to the defendants’ motion. See Aplt’s App. vol.

III at 1093 (Tr. of Status Conference dated April 30, 1996) (“The way I read [the

summary judgment briefs’ discussion of the grand jury testimony] was that

plaintiff claimed the termination was for talking to the attorney or for talking to

the media and not specifically for talking to the grand jury.”). The district court

then concluded that Mr. Lytle’s statements to Mr. Berg and the press did “touch a


                                          11
matter of public concern.” Id. at 1106.

      Next, the district court conducted the Pickering balancing. It found that

Mr. Lytle’s interest in expression was outweighed by the City’s interest in

efficient public service and that his speech was therefore not constitutionally

protected. See Aplt’s App. vol. III, at 1106-07, 1113-19. As a result, the district

court did not consider the third and fourth parts of the First Amendment inquiry

(whether Mr. Lytle’s speech was a substantial or motivating factor for Mr. Lytle’s

discharge and whether the discharge would have occurred in the speech’s

absence).

      In this appeal, Mr. Lytle challenges the district court’s application of the

Pickering test, arguing that the district court erred in concluding that the City’s

interest in efficient public service outweighed his interests in free expression. 1


      1
              Mr. Lytle does not argue that there are any underlying factual
disputes that affect the Pickering balancing and that should have been submitted
to the jury. In this regard, we note that although the Supreme Court has
concluded that “[t]he inquiry into the protected status of speech is one of law, not
fact,” see Connick, 461 U.S. at 148 n.7, there is some debate as to whether
underlying disputes whose resolution might affect the Pickering balancing should
be decided by the court or by the jury. See Waters, 511 U. S. at 693 (Scalia, J.,
concurring) (noting that the plurality opinion does not clarify what issues in the
Pickering balancing are for the court and what issues are for the jury).
              This circuit appears not to have reached that question, and other
circuits are divided. Compare Joyner v. Lancaster, 815 F.2d 20, 23 (4th Cir.
1987) (concluding that matters underlying the Pickering inquiry “‘were not
factual issues for the jury,’” but “‘involved questions of constitutional law for the
court’” quoting Jones v. Dodson, 727 F.2d 1329, 1337 n.11 (4th Cir. 1984)) with
Casey v. City of Cabool, Mo., 12 F.3d 799, 803 (8th Cir. 1993) (“[A]ny

                                          12
He focuses on his status as a whistle blower, contending that because he “was a

sincere whistle blower who felt the police department had failed to investigate his

complaint,” see Aplt’s Opening Br. at 17, his statements were protected under the

First Amendment. Significantly, Mr. Lytle does not challenge the district court’s

finding that the grand jury testimony is not at issue in his First Amendment

claim. 2


underlying factual disputes concerning whether the speech at issue was protected
should have been submitted to the jury.”).
       In the instant case, because Mr. Lytle does not contend that the district
court improperly resolved factual issues underlying the Pickering balancing, we
need not resolve this issue.
       2
                This circuit has concluded that a witness’s sworn testimony in a court
proceeding is entitled to heightened protection under the First Amendment. In Melton v.
City of Oklahoma City, 879 F.2d 706, 714 (10th Cir. 1989), vacated on other grounds,
928 F.2d 920 (10th Cir. 1990) (en banc), we stated that a witness’s interest in
testifying at trial was “so strong in this case that any disruption or impairment of the
enterprise would have to be extreme in order to justify preventing trial testimony.” We
found no evidence that the witness’s trial testimony affected the operation of a police
department and further noted that the witness “had a clear public duty to testify.” Id. at
715. “In many instances, that duty might be enhanced by judicial compulsion. Certainly
we would not expect a public employee to suffer contempt in order to preserve the
efficiency and effectiveness of a public employer, even the police department.” Id.
Accordingly, we concluded that the plaintiff police officer’s interest in testifying clearly
outweighed what little disruption might have occurred.
        Other circuits have adopted a similar view. See, e.g., Green v. Philadelphia
Housing Authority, 105 F.3d 882, 888 (3d Cir.) (noting the strong interests favoring
subpoenaed testimony because it implicates “not only the integrity of the truth seeking
process and the effective administration of justice, but also the public’s interest in
protecting court-ordered conduct”), cert. denied, 118 S. Ct. 64 (1997); Pro v. Donatucci,
81 F.3d 1283, 1291 (3d Cir. 1996) (concluding that the government had “no legitimate
interest” in regulating an employee’s trial testimony and resolving Pickering balance in
favor of the testifying employee); Wright v. Illinois Dept. of Children & Family Servs, 40
F.3d 1492, 1505 (7th Cir. 1994) (“[S]urely an employee summoned to give sworn

                                            13
       Upon considering the factors relevant to the Pickering balancing we

conclude for the reasons set forth below that the district court properly found that

the City’s interests outweigh Mr. Lytle’s interest in speaking to Mr. Berg and the

press about a confidential police investigation and that as a result, these

statements are not protected by the First Amendment. Our application of the

Pickering balancing renders it unnecessary for us to consider the third and fourth

stages of the general First Amendment inquiry.



                          b. Pickering Applied to this Case

       As the district court found and the parties acknowledge, Mr. Lytle’s

statements to Mr. Berg and to the press involve matters of public concern. See

Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988) (“Speech which discloses

any evidence of corruption, impropriety, or other malfeasance on the part of city



testimony in a judicial proceeding has a compelling interest in testifying truthfully and the
government employer can have an offsetting interest in preventing her from doing so only
in the rarest of cases.”); Smith v. Hightower, 693 F.2d 359, 368 (5th Cir. 1982) (“[T]he
first amendment protects the right to testify truthfully at trial.”).
        In the instant case, because Mr. Lytle has not challenged the district court’s
conclusion that his grand jury testimony was not at issue in his First Amendment claim,
see Aplt’s App. vol. III at 1093-94, we need not decide what weight to afford this
testimony in the Pickering balancing.
        However, we do note that Chief Kitchings stated to a reporter that Mr. Lytle “ha[d]
a duty and obligation to testify to the grand jury” and that he did not terminate Mr. Lytle
because of his grand jury testimony. See Aplt’s App. vol. III at 1017 (transcript of July
17, 1991 telephone conversation between Chief Kitchings and Phil LeBeau.).


                                             14
officials, in terms of content, clearly concerns matters of public import.”). We

therefore proceed to balance Mr. Lytle’s interest in expression against the City’s

interest as an employer in regulating the speech in question.

      We begin with Mr. Lytle’s interests, noting the significance of the fact that

he has accused government officials of serious wrongdoing. “When balancing the

rights of the employee against those of the employer, an employee’s First

Amendment interest is entitled to greater weight where he is acting as a whistle

blower in exposing government corruption.” Id. at 797.

      Nevertheless, there are also several important aspects of Mr. Lytle’s speech

that diminish his interests under the Pickering inquiry. In considering the time,

place, and manner of the disputed speech, this circuit has considered whether the

employee used “less disruptive internal channels, rather than going outside the

city administration.” Id. at 798; see also Johnsen v. Independent Sch. Dist. No. 3

891 F.2d 1485, 1494 (10th Cir. 1989) (noting that the court should consider

whether the employee “used internal complaint procedures” and finding that the

“[p]laintiff’s decision to contact outside agencies prior to using the complaint

mechanism of the school was unnecessarily disruptive because there was no

indication that the internal mechanism would not be sufficient.”).

      Here, according to Mr. Lytle’s own account, Lieutenant Coleman was the

only person within the Haysville Police Department whom he had informed of the


                                         15
“dead or dying” comments before he spoke to Mr. Berg about the Wilson case.

Although he had submitted two written reports regarding his investigation of the

Wilson shooting, these reports had a significant omission: Mr. Lytle failed to

included any statements about the “dead or dying” comments. Further, Mr. Lytle

made no other written record of them before he spoke to Mr. Berg. Additionally,

before he spoke to Mr. Berg, Mr. Lytle had not discussed these alleged comments

with Chief Kitchings, and he has offered no justification for his failure to do so.

Even as to Lieutenant Coleman, there is no indication that, before he spoke to Mr.

Berg, Mr. Lytle followed up his initial conversation about the “dead or dying”

comments in any way. As the Supreme Court has noted, “[t]he burden of caution

[an employee] bear[s] with respect to the words [he] speak[s]” varies with his job

responsibilities. Rankin, 483 U.S. at 390. Mr. Lytle’s responsibilities as a police

officer who had worked on the Wilson investigation clearly called for a degree of

caution that he failed to exercise. We therefore conclude, just as in Johnsen, that

Mr. Lytle’s failure to pursue his allegations internally indicates that his speech

was “unnecessarily disruptive.” Johnsen, 891 F.2d at 1494. That conclusion

diminishes the weight we afford his interest in the Pickering balancing.

      Moreover, a government employee’s interest in whistleblowing is entitled

to little weight if a reasonable person in his shoes would not have believed that

there was government corruption or wrongdoing. Cf. Moore, 57 F.3d at 933


                                          16
(assuming, without deciding, that recklessly false allegations of wrongdoing “are

either unprotected by the First Amendment or, at least, that such intentional

falsity would weigh heavily against protection”); Johnsen, 891 F.2d at 1493

(affording less weight to an employee’s interests because her erroneous statement

was “at least careless and could be characterized as reckless in light of the

predictable impact that such a statement would have upon the public”). Thus,

under the Pickering inquiry, we must consider whether there was a reasonable

basis for Mr. Lytle’s two principal allegations of wrongdoing: (1) that his fellow

officers committed second degree murder by failing to render aid to Mr. Wilson

and (2) that the Department sought to coverup the officers’ misconduct.

      As to the failure to render aid to Mr. Wilson, we do not believe that it was

reasonable for Mr. Lytle to conclude that there was government misconduct. The

evidence indicated that the officers’ decision not to perform CPR was based on

the training that they had received. Moreover, Mr. Lytle himself had been trained

not to move or give first aid to critically injured persons who are still breathing,

because doing so risks further injury and might do more harm than good. See

Aplt’s App. vol. I at 305 (Tr. of dep. of Mr. Lytle, dated Feb. 24, 1993).

Although Mr. Lytle’s suggestion that direct pressure should have been applied to

Mr. Wilson’s wound may merit evaluation by the Department, there is no

evidence in the record indicating that the officers’ failure to render first aid was


                                          17
motivated by an intent to harm Mr. Wilson or reflected reckless indifference to

his welfare. 3

       We reach a similar conclusion as to Mr. Lytle’s allegation of a Department

coverup. We note that, as evidence of such a coverup, Mr. Lytle points only to

the following: after the shooting, Mr. Lytle reported Lieutenant Powers’s “dead

or dying” comment to Lieutenant Coleman, and Lieutenant Coleman did not order

Mr. Lytle to make a report. See id. vol. III at 825-27. We do not believe that this

evidence indicates that the Department was engaged in a cover-up. The record

merely indicates that Lieutenant Coleman failed to order Mr. Lytle to submit a

report. It does not suggest that Lieutenant Coleman, or anyone else, forbade,

discouraged, or otherwise sought to prevent Mr. Lytle from filing reports that

discussed the “dead or dying” comments either with Lieutenant Coleman or Chief

Kitchings.

       Having concluded that Mr. Lytle’s interests are significantly diminished by

his failure to pursue his concerns within the Department and by the lack of a

reasonable factual basis for his allegations, we now consider the interests of Mr.

Lytle’s employer. As explained below, we conclude that those interests are


       3
             Under Kansas law, second degree murder (the offense that Mr. Lytle
accused the officers of committing) is defined as “the killing of a human being
committed: (a) [i]ntentionally; or (b) unintentionally but recklessly under circumstances
manifesting extreme indifference to the value of human life.” See Kan. Stat. Ann. § 21-
3402 (1995).

                                            18
entitled to substantial weight.

      We first note that there is undisputed evidence that, by speaking with Mr.

Berg and the press, Mr. Lytle breached general Department confidentiality rules

and specific orders not to discuss the Wilson matter with persons outside the

Department. See, e.g., id. vol. III at 1083-85 (recording no objections to the

district court’s statement that Mr. Lytle “admitted to Mr. Berg that he was under

orders not to discuss the Wilson investigation”). Moreover, the City and Chief

Kitchings presented affidavits from several officers and employees demonstrating

the effect of Mr. Lytle’s breach of confidentiality rule. According to these

affidavits, after they learned of his statements to Mr. Berg and the press, Mr.

Lytle’s coemployees no longer trusted him with confidential information

regarding the Wilson investigation, or any other sensitive police matter. See id.

vol. I, at 90-123. For example, they stated that, “[a]fter the allegations it seemed

that no one really wanted to work with [Mr.] Lytle due to no trust,” id. at 90 (aff.

of Mylain E. Anthis); that “[i]t was very hard to conduct telephone conversations

with [Mr. Lytle] in the same room, in fear that I could be speaking about a case,”

id. at 92 (aff. of John Coleman); and that “I no longer trusted [Mr.] Lytle--nor did

his fellow officers and employees,” id. at 111 (aff. of Debbie Mann). According

to these officers, this lack of trust significantly damaged department morale and

made it more difficult to do their jobs. See, e.g., id. at 110 (“Morale in the


                                         19
Department decreased significantly after [Mr.] Lytle’s statements.”), 116 (aff. of

Michael McElroy) (“No one wanted to work with [Mr.] Lytle. I had to tell the

officers that they had to at least be polite to him. In [l]aw [e]nforcement, officers

have to work together and share information.”).

      This circuit has recognized the importance of confidentiality to the

performance of police officers’ responsibilities.   “Any breach of confidentiality .

. . reflects negatively on an officer’s ability and competence to perform his job,

and each officer’s competence affects the overall effectiveness of the

department.” Melton, 879 F.2d at 715. Moreover, personal loyalty and

confidence are especially important among police officers, who are charged with

ensuring public safety and who often must work together in life-and-death

situations. See Moore, 57 F.3d at 934 (The “need [for workplace harmony] is

particularly acute in the context of law enforcement, where there is a ‘heightened

interest . . . in maintaining discipline and harmony among employees.’” quoting

Wulf v. City of Wichita, 883 F.2d 842, 861 (10th Cir. 1989)); Koch, 847 F.2d at

1452 n.22 (“A number of cases have emphasized the heightened governmental

interest in maintaining harmony among employees in the law enforcement

context.”). These concerns are even greater in a relatively small department,

where a minor disturbance in morale might loom large. See Aplt’s App. vol. I, at

105 ¶¶ 4, 5 (Tr. of dep. of Chief Kitchings, dated Nov. 20, 1995) (citing a


                                          20
Haysville police force of 15 officers and a Haysville population of approximately

8,000); see also Moore, 57 F.3d at 934 (finding that “the small size of the

department increased the likelihood and severity of disruption”).

      Although Mr. Lytle has not contested the defendants’ evidence regarding

the damaging effects of his breach of confidentiality on the Department, he does

argue that these effects were not considered at the time of his dismissal. Mr.

Lytle notes that Chief Kitchings did not mention the effect of the statements to

Mr. Berg and the press in the letter of termination or in interviews with the news

media after the discharge. See Aplt’s App. vol. III, at 1019-22 (Tr. of interview

with Judy Conklin, Haysville Pioneer, dated July 17, 1991); see also id. at 964-66

(Notice of termination, dated July 16, 1991). He further notes that Chief

Kitchings later testified during his deposition that it was not until after the

termination that he became aware of workplace disharmony. See id. vol. I at 144

(Tr. of dep. of Chief Kitchings dated September 12, 1994), vol. III at 944-46 (Tr.

of dep. of Chief Kitchings, dated Oct. 12, 1995). According to Mr. Lytle, Chief

Kitchings’s failure to mention the effects of his breach of confidentiality until

well after his termination precludes us from considering these effects in the

Pickering balancing.

      We are not persuaded by this argument. In weighing the government

employer’s interests, the primary consideration is the impact of the disputed


                                          21
speech “on the effective functioning of the public employer’s enterprise.”

Rankin, 483 U.S. at 388. Thus, rather than examining the explanation offered at

a particular time by an individual decisionmaker such as Chief Kitchings, we must

evaluate the effect of Mr. Lytle’s statements on the Department as a whole. We

acknowledge that, in certain instances, a decisonmaker’s failure to mention

certain adverse effects of the challenged speech may constitute some evidence

those effects did not really occur or did not significantly impair the functioning of

the government entity. See, e.g., Rankin, 483 U.S. at 388-89 (citing the

decisionmaker’s testimony that the disruption of office functions was not a

consideration when the employee was terminated in support of the conclusion that

“there is no evidence that [the speech] interfered with the efficient functioning of

the office”). However, the fact that an official does not mention a particular

adverse effect of the challenged speech in a termination letter or in various other

statements concerning the challenged employment action does not necessarily

preclude the government employer from invoking such an effect in articulating its

interests under the Pickering inquiry.

      In the instant case, Chief Kitchings’s failure to specifically mention the

effects of Mr. Lytle’s breach of confidentiality rules on Department morale and

efficiency does not diminish the weight we afford these effects in the Pickering

inquiry. As we have noted, our decisions recognize that there is often a close


                                          22
connection between a police department’s confidentiality rules and the morale and

effective functioning of the police force. See, e.g., Melton, 879 F.2d at 714.

1989). When he terminated Mr. Lytle, Chief Kitchings did mention the

confidentiality rules, and the effects on morale and efficiency documented by the

Department were foreseeable results of Mr. Lytle’s violation of those rules.

      For all of the foregoing reasons, we believe that the Pickering balancing

tips in the defendants’ favor. The only factor weighing on Mr. Lytle’s side of the

scales is Mr. Lytle’s whistle blower status, and the significance of even that

factor is substantially diminished by Mr. Lytle’s failure to pursue his allegations

within the Department and by the unreasonableness of his beliefs about

government wrongdoing. Mr. Lytle’s limited interests are far outweighed by the

Department’s interest in maintaining confidentiality and avoiding workplace

disruption. Accordingly, the district court properly granted summary judgment to

the defendants on Mr. Lytle’s First Amendment claim. 4




      4
          Because we conclude that there was no First Amendment violation, we
need not consider whether Chief is entitled to qualified immunity. See Martinez
v. California, 444 U.S. 277, 28 Kitchings 4 (1980) (“[I]t is not necessary for us to
decide any question concerning . . . immunity . . . because . . . [t]he first inquiry in
[immunity analysis] . . . is whether the plaintiff has been deprived of a right
secured by the Constitution and laws of the United States. The answer to that
inquiry disposes of this case.” (internal citations and quotations omitted).

                                          23
                         2. State-Law Retaliatory Discharge

      We also disagree with Mr. Lytle that the district court erred in granting the

defendants summary judgment on the state-law retaliatory discharge claim. When

exercising jurisdiction over pendent state claims, we must apply the substantive

law of the forum state and reach the same decision we believe that state’s highest

court would, just as we would if our jurisdiction rested on diversity of citizenship.

See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (citing Erie R.R.

Co. v. Tompkins, 304 U.S. 64 (1938)).

      In Palmer v. Brown, 752 P.2d 685 (Kan. 1988), the Kansas Supreme Court

stated that a whistle blower retaliatory discharge claim requires, inter alia, proof

“by clear and convincing evidence, . . . [that] a reasonably prudent person would

have concluded the employee’s co-worker or employer was engaged in activities

in violation of rules, regulations, or the law pertaining to public health, safety,

and the general welfare. . . .” Id. at 690. In this case, the district court ruled that

Mr. Lytle had not proven, by clear and convincing evidence, that a reasonable

person would have concluded that the officers at the scene had committed second-

degree murder. See Aplt’s App. vol. III at 1134-35.

      Mr. Lytle argues that the district court erred in applying a clear and

convincing standard of proof. He suggests that the appropriate standard is

preponderance of the evidence, citing Ortega v. IBP, Inc., 874 P.2d 1188 (Kan.


                                          24
1994). Ortega held that a retaliatory discharge claim must be proven “by a

preponderance of the evidence . . . [that is] clear and convincing in nature.” Id. at

1198. Ortega added that “clear and convincing” is a quality, rather than a

quantum, of proof. See id. According to Ortega, evidence “is clear if it is

certain, unambiguous, and plain to the understanding. It is convincing if it is

reasonable and persuasive enough to cause the trier of facts to believe it.” Id.

      Although Ortega involved retaliation for filing a workers compensation

claim, rather than for whistle blowing, see id. at 1190, we believe that the Ortega

standard governs this action. As the Ortega court stated, “[w]e find no

justification for applying different standards of proof in whistle-blowing and

workers compensation retaliatory discharge cases.” Id. at 1194.

      In discussing Mr. Lytle’s First Amendment claim, we concluded that Mr.

Lytle did not have reasonable grounds for believing there was wrongdoing, either

by the officers at the scene or in the Department’s internal investigation. We

reached this conclusion based on the preponderance of the evidence standard that

governs Mr. Lytle’s First Amendment claim. See Grogan v. Garner, 498 U.S.

279, 286 (1991) (noting that civil actions are normally subject to the

preponderance of the evidence standard). This standard does not incorporate the

additional requirement that the quality of the evidence be “clear and convincing.”

See Santosky v. Kramer, 455 U.S. 745, 756 (1982) (describing “clear and


                                          25
convincing” as an “intermediate standard of proof” — i.e., in between

“preponderance of the evidence” and “beyond a reasonable doubt”). Because we

do not think it was even “more probable than not,” Black’s Law Dictionary 1182

(6th ed. 1990), that a reasonable person could have believed there was

government wrongdoing, we definitely do not think the evidence of government

wrongdoing was “certain, unambiguous, and plain to the understanding.” Ortega,

874 P.2d at 1198. Thus, we do not believe a reasonable jury could find in Mr.

Lytle’s favor on the state-law retaliatory discharge claim. See Anderson, 477

U.S. at 248. We agree with the district court that the defendants are entitled to

summary judgment.



                               III. CONCLUSION

      For the foregoing reasons, we conclude that the defendants are entitled to

summary judgment on Mr. Lytle’s First Amendment and state-law retaliatory

discharge claims. Accordingly, we AFFIRM the judgment of the district court.




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