                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 8 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    RANDALL TARLTON and
    ELIZABETH TARLTON,
    husband and wife,

                Plaintiffs-Appellants,

    v.                                                   No. 03-6326
                                                   (D.C. No. CV-02-1458-T)
    CITY OF PERKINS, a political                         (W.D. Okla.)
    subdivision of the State of Oklahoma;
    JACK ROSSON, in his individual
    capacity,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before KELLY , HARTZ , and TYMKOVICH , 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      This order and judgment is not binding precedent, except under the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.
       Plaintiffs-appellants Randall Tarlton and Elizabeth Tarlton, husband and

wife, appeal the grant of summary judgment to defendants-appellees the City of

Perkins, Oklahoma, and Jack Rosson, the City Manager of Perkins, Oklahoma, in

his personal capacity. The Tarltons had alleged that they were dismissed from the

volunteer police department of Perkins in violation of their First Amendment

rights protected by 42 U.S.C. § 1983 because Elizabeth Tarlton had sent a series

of letters to a local newspaper suggesting that the City was being run poorly.       1



Defendants explained that the Tarltons were instead dismissed from the volunteer

police department because they had misused their official positions and had

demonstrated poor judgment in several confrontations with members of the

community. Defendant Rosson asserted qualified immunity from suit. We affirm

the district court’s order granting defendants summary judgment.

       The district court found that, even when considered in the light most

favorable to plaintiffs, under the   Pickering/Connick test for government

employees’ speech, the Tarltons had failed to present relevant admissible

evidence to establish that Elizabeth Tarlton’s letters were “a substantial factor

driving the challenged governmental action.”       Tarlton v. City of Perkins, Okla.     ,

D.C. No. CIV-02-1458-T, Slip Op. at 8-10 (W.D. Okla. Nov. 4, 2003);              see also


1
       Additionally, plaintiffs allege that they were discriminated against because
they were members of the Fraternal Order of Police, but do not factually develop
that basis for their lawsuit.

                                            -2-
Pickering v. Bd. of Educ. , 391 U.S. 563, 572-75 (1968) (establishing a general

balancing test to protect the free speech of governmental employees);   Connick v.

Myers , 461 U.S. 138, 144-47 (1983) (refining the balancing test). Plaintiffs had

pointed to four statements to show a connection between Elizabeth Tarlton’s

letters and their dismissal from the police force. Those four statements were

(1) that Elizabeth Tarlton had heard through other parties that the City Manager

had been unhappy that she had written letters to the newspaper questioning how

the City was being run; (2) that the City Manager had been short with her during a

personal meeting in March or April of 2000; (3) that the City Manager was upset

that plaintiffs had received copies of an internal investigative report regarding

plaintiffs’ verbal abuse of a minor; and (4) that plaintiffs were informed that they

were fired from the volunteer police department because they had demonstrated

poor judgment in confronting and verbally abusing members of the community.

      But, of these four statements, the district court found that the first one was

based on hearsay; the second one was far removed in time from the City’s

decision to dismiss the Tarltons from the volunteer police force; and the third and

fourth statements demonstrated the City Manager’s anger at the plaintiffs’ misuse

of their official positions in confronting members of the community, as opposed

to any problem he might have had with Elizabeth Tarlton’s letters to the

newspaper. Tarlton , Slip Op. at 8-10. The district court accordingly granted


                                           -3-
defendants’ motion for summary judgment, it denied plaintiffs’ cross-motion for

summary judgment, and it upheld defendant Rosson’s qualified immunity from

suit.

        We review decisions regarding summary judgment       de novo , applying the

same standard as the district court.   Hollingsworth v. Hill , 110 F.3d 733, 737

(10th Cir. 1997). We view the evidence and any inferences therefrom in the light

most favorable to the non-moving party,      J.B. v. Washington County , 127 F.3d

919, 923 (10th Cir. 1997); and we will affirm a grant of summary judgment when

“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,” id. (quoting Fed. R. Civ. P. 56(c)).

        When summary judgment is founded on the defense of qualified immunity,

we also review the matter under the framework set out in     Woodward v. City of

Worland , 977 F.2d 1392, 1396-97 (10th Cir. 1992)     . Plaintiff has the burden to

establish both that the facts or allegations are sufficient to show a constitutional

violation, and that the law was clearly established when the alleged violation

occurred such that a reasonable official would have been on notice that his

actions violated the law.   Id. If there is no genuine dispute of material fact that

would defeat a defendant’s claim of qualified immunity, the defendant is entitled


                                           -4-
to judgment as a matter of law.     See Anderson v. Liberty Lobby, Inc.    , 477 U.S.

242, 250 (1986).

       Under the four-part Pickering/Connick test to protect the First Amendment

speech rights of government employees, we consider (1) whether the speech in

question involves a matter of public concern; (2) whether the employee’s interest

in expression outweighs the government employer’s interest in regulating the

speech of its employees to maintain an efficient and effective workplace; and

(3) whether the employee has shown that the speech was “a substantial factor

driving the challenged governmental action.”       Jantzen v. Hawkins , 188 F.3d 1247,

1257 (10th Cir. 1999). Only once plaintiff has satisfied those parts of the test, do

we require an employer to show at the fourth step that it would have taken the

same action against the employee in the absence of his protected speech.        Id. ;

accord Barker v. City of Del City    , 215 F.3d 1134, 1138-39 (10th Cir. 2000).

       Upon de novo review, we conclude that plaintiffs have failed to carry their

burden of proof at the third prong of the   Pickering /Connick test. We agree with

the district court that the statements plaintiffs attempted to admit were either

inadmissible or irrelevant to their argument that the City had unconstitutionally

discriminated against them on the basis of Elizabeth Tarlton’s letters to the

newspaper. We hold that plaintiffs have failed to establish disputed facts that the

letters were “a substantial factor driving the challenged governmental action.”


                                            -5-
Barker , 215 F.3d at 1139. Because plaintiffs have not established a constitutional

violation, defendants are entitled to summary judgment.

      We AFFIRM the judgment of the district court.



                                                    Entered for the Court


                                                    Timothy M. Tymkovich
                                                    Circuit Judge




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