                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                         Nos. 00-1217/1242/1243/1244/1245
                                   ___________

Wendell Domina, Blaise Riggs,           *
Linden Snyder, Van Harpold, and         *
Jerry Soule,                            *
                                        *
            Appellees,                  *
                                        *   Appeals from the United States
      v.                                *   District Court for the District of
                                        *   Nebraska.
George Van Pelt, Individually;          *
Klayton Johnson, Individually;          *
Dale Shaul, Individually; and           *
Charles Person, Individually,           *
                                        *
            Appellants.                 *

                                   ___________

                             Submitted: September 15, 2000

                                  Filed: December 26, 2000
                                   ___________

Before HANSEN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      We view the record in the light most favorable to the plaintiffs. See Burnham
v. Ianni, 119 F.3d 668, 673 (8th Cir. 1997) (en banc). While Blaise Riggs was a
member of the Banner County, Nebraska, road crew, he observed Charles Person, who
had recently retired as the county road superintendent, and the road department
secretary in an office during the noon hour engaged in what appeared to be a sexual act.
On the same day, Mr. Riggs reported the incident to his supervisor. The next day, the
other four plaintiffs, who were also road crew members, overheard Mr. Riggs and his
supervisor discussing the incident. On the following work day, the supervisor directed
Mr. Riggs to tell the entire road crew about the incident. The supervisor then asked
Mr. Riggs and the other road crew members to accompany him to the home of
defendant George Van Pelt, a county commissioner, and to apprise Mr. Van Pelt of the
incident. Mr. Van Pelt subsequently contacted defendants Klayton Johnson and Dale
Shaul, two other county commissioners.

       Mr. Riggs and the secretary were placed on paid leave pending the completion
of an investigation. The county attorney characterized the results of the investigation
as "inconclusive," partly because Mr. Person and the secretary denied engaging in the
sexual conduct. Mr. Riggs was eventually fired, and the other road crew members
were advised by letter that they would be subject to discipline, including discharge, if
they discussed the incident at work or on county property. According to the letter,
there were no restrictions on what the road crew members could say on their own time
and away from county property, but they were "strongly encourage[d]" not to discuss
the matter at all.

       Following a hearing regarding Mr. Riggs's discharge, the county offered to
reinstate him to his position on the road crew. He was told, however, that he would not
be promoted to a supervisory position that he had been scheduled to assume.
Mr. Riggs declined the county's offer. The commissioners stated that they denied
Mr. Riggs the supervisory position because of the way in which he reported the
relevant incident, including having told his co-workers what he had observed, and
because he later said that he was uncomfortable approaching two of the commissioners.




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       The plaintiffs sued the defendants in their individual capacity under 42 U.S.C.
§ 1983, alleging that Mr. Person and the commissioners violated the plaintiffs’
constitutional rights. Mr. Riggs alleged that the defendants retaliated against him for
reporting the incident, and that their actions in suspending, discharging, and, after
reinstatement, denying him a promotion, violated his first amendment right of freedom
of expression. He also alleged that the defendants' actions discouraged him from
further protected speech and violated his right to equal protection. The other four
plaintiffs alleged that the letter forbidding them to discuss the incident violated their
first amendment and equal protection rights.

      The defendants moved for summary judgment on the basis of qualified immunity.
The district court denied the motions, and the defendants appeal.

                                               I.
       Initially, we reject the plaintiffs' contention that the defendants waived any right
to qualified immunity that they might have had by failing to raise the defense prior to
moving for summary judgment. We have previously observed that "[q]ualified
immunity is usually raised by a motion for summary judgment after a limited amount
of discovery has been conducted," Whisman v. Rinehart, 119 F.3d 1303, 1309 (8th Cir.
1997). We note, moreover, that the defendants moved for summary judgment on the
ground of qualified immunity within the time limits specified by the district court.

                                              II.
       The plaintiffs also contend that Mr. Person may not assert a qualified immunity
defense because he was no longer employed by the county when he allegedly violated
the plaintiffs' constitutional rights. Public officials, of course, are entitled to qualified
immunity from liability for damages under 42 U.S.C. § 1983 if "their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known," Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Private
individuals, however, are not necessarily shielded from liability under § 1983 by the

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immunity afforded public officials. See Richardson v. McKnight, 521 U.S. 399,
402-04 (1997). Generally, to determine whether a private individual may rely on a
qualified immunity defense, the courts look to the policy considerations supporting the
doctrine of qualified immunity and to the historical availability of the defense to the
group to which the individual belongs. See id. at 403-04.

       Here, Mr. Person makes no effort to explain why the defense of qualified
immunity that is available to public officials should be extended to him as a private
citizen. We therefore decline to review the district court's order denying him the
defense. Cf. Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d
1208, 1212 (8th Cir. 1993) (appellant waived right to appeal district court's ruling by
failing to specify errors and to cite relevant authority).

                                         III.
       The county commissioners, as public officials, may appeal the district court's
orders denying them summary judgment based on qualified immunity insofar as their
entitlement to that defense depends on whether certain facts show a violation of clearly
established law. See Hunter v. Namanny, 219 F.3d 825, 829 (8th Cir. 2000). Our
review is de novo. See id.

         To determine whether these defendants are entitled to qualified immunity, we
ask, first, whether the plaintiffs alleged the deprivation of a federal constitutional right.
See Conn v. Gabbert, 526 U.S. 286, 290 (1999). If necessary, we then decide whether
the law was clearly established at the time of the alleged constitutional violation. See
id. If we determine that the law was clearly established at the relevant time, we
consider "whether, given the facts most favorable to the plaintiffs, there are no genuine
issues of material fact as to whether a reasonable official would have known that the
alleged action violated that right," Burnham, 119 F.3d at 673-74. "[I]f the law claimed
to have been violated was clearly established, the qualified immunity defense ordinarily
fails, 'since a reasonably competent public official should know the law governing his

                                            -4-
conduct,' " Sexton v. Martin, 210 F.3d 905, 910 (8th Cir. 2000), quoting Harlow, 457
U.S. at 819.

       Since Mr. Riggs contends that his first amendment right of free expression was
violated, we consider initially whether the speech he engaged in was on a matter of
public concern. A public employee's speech that "cannot be fairly characterized as
[pertaining to] a matter of public concern," Connick v. Myers, 461 U.S. 138, 146
(1983), is not entitled to first amendment protection. In order to be speech on a matter
of public concern, the employee's expression must "be fairly considered as relating to
any matter of political, social, or other concern to the community," id.

      "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," id. at 147-48. Generally, a public employee's speech as an employee
"upon matters only of personal interest," rather than speech as “a citizen upon matters
of public concern,” id. at 147, is not protected by the first amendment.

       With regard to content alone, we do not believe that the report of a sexual act
during the noon lunch hour between a public employee and her former supervisor
would necessarily be a matter of public concern. We must also examine Mr. Riggs's
speech, however, in the context in which it arose. Before Mr. Riggs's report, he and
the other road crew members had been upset for some time about favoritism to the
secretary. The secretary had received a significant pay raise that the other employees
did not receive, and although her paid hours had doubled, her work did not increase
accordingly, and she spent work time on such activities as painting pictures and playing
cards with Mr. Person.

       "Heightened public interest in a particular issue, while not dispositive, may also
indicate that the issue is one of public concern," Belk v. City of Eldon, 228 F.3d 872,
878 (8th Cir. 2000). During the year prior to Mr. Riggs's report, the community was

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"buzzing" with rumors that Mr. Person and the secretary were having an affair, and
community members had expressed concern that Mr. Person and the secretary were
misusing county time and tax dollars. Several months before Mr. Riggs reported the
incident, the county commissioners received an anonymous letter from a "very
concerned taxpayer," complaining that people were angry because "Mr. Person ha[d]
his own call girl on the county payroll" and that they were seen together during
business hours "driving around the county" and at stores and restaurants. The letter
also claimed that other people had seen this occurring and wanted it to stop, and that
tax dollars were being wasted. According to the county clerk's deposition, when the
letter was given to the commissioners and to Mr. Person during a commission meeting,
one of the commissioners remarked that Mr. Person "needed to keep a lower profile."

       In Belk, we held that the plaintiff spoke on a matter of public concern when she
reported to a city alderman that there were rumors of an extramarital affair between a
female city employee and her supervisor and that the female employee might have been
receiving benefits to which she was not entitled. See id. at 876-77, 879. We held that
the use of public funds was at issue, and that the mention of rumors regarding the affair
was “part of [the plaintiff's] protected speech, because they provided a potential
explanation for [the supervisor's] alleged misuse of public funds," id. at 879.

       "We generally have held that speech about the use of public funds touches upon
a matter of public concern," Kincade v. City of Blue Springs, 64 F.3d 389, 396 (8th
Cir. 1995), cert. denied, 517 U.S. 1166 (1996). Here the incident that Mr. Riggs
reported provided an explanation for previous complaints made during Mr. Person's
tenure that working hours (and thus tax dollars) were being used for non-work
activities. We therefore reject the commissioners' contention that Mr. Riggs's
statements did not have to do with matters of public concern.




                                          -6-
                                          IV.
       The commissioners would nonetheless be protected by qualified immunity if in
early 1998 (the time of their alleged misconduct) it was not clearly established that the
speech in which Mr. Riggs engaged was on a matter of public concern. See Harlow,
457 U.S. at 818. To be clearly established, the "contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right," Anderson v. Creighton, 483 U.S. 635, 640 (1987).

       We have "taken a broad view of what constitutes 'clearly established law' for the
purposes of a qualified immunity inquiry, requiring some but not precise factual
correspondence with precedents and demanding that officials apply general,
well-developed legal principles," Boswell v. County of Sherburne, 849 F.2d 1117, 1121
(8th Cir. 1988), cert. denied, 488 U.S. 1010 (1989), quoting Lappe v. Loeffelholz, 815
F.2d 1173, 1177 n.3 (8th Cir. 1987). We also must review the facts known to the
commissioners to determine whether they reasonably should have known that their
actions, in light of those facts, would violate the law. See Miller v. Schoenen, 75 F.3d
1305, 1308 (8th Cir. 1996).

       Three years before the county commissioners disciplined Mr. Riggs, we
observed that our holdings generally indicate that speech about the use of public funds
"touches upon a matter of public concern," Kincade, 64 F.3d at 396. Earlier, in Hamer
v. Brown, 831 F.2d 1398, 1402 (8th Cir. 1987), we held that the relevant speech
addressed a matter of public concern because, inter alia, it "related to the expenditure
of public funds." We therefore believe that at the time the commissioners disciplined
Mr. Riggs there existed a "well-developed legal principle[]," Boswell, 849 F.2d at
1121, that speech regarding the use of public funds was on a matter of public concern.
Cf. Belk, 228 F.3d at 882. We also believe that widespread rumors in the community
and the letter to the commissioners connecting Mr. Person's alleged affair to the loss
of tax dollars support a finding that the commissioners reasonably should have known



                                          -7-
that Mr. Riggs's report of the incident related to the misuse of public funds, which is
a matter of public concern.

                                            V.
        The commissioners argue that regardless of whether Mr. Riggs spoke on a matter
of public concern, they are entitled to qualified immunity because his speech disrupted
the workplace. If a public employee's speech is found to be on a matter of public
concern, the court then must balance the employee's interests as a citizen "in
commenting upon matters of public concern and the interest of the [public employer]
... in promoting the efficiency of the public services it performs," Pickering v. Board
of Education, 391 U.S. 563, 568 (1968), to determine whether the speech is protected
under the first amendment. The balancing is done by the court, but underlying factual
questions, such as "whether the speech created disharmony in the work place," Shands
v. City of Kennett, 993 F.2d 1337, 1342 (8th Cir. 1993), cert. denied, 510 U.S. 1072
(1994), are for the jury.

      The district court denied summary judgment based on factual disputes in the
record as to whether employee morale was affected by the speech in question. Cf.
Grantham v. Trickey, 21 F.3d 289, 295 n.4 (8th Cir. 1994). Although "in many free
speech cases the outcome of the Pickering balancing test would be unclear to a
reasonable official," Sexton, 210 F.3d at 914, and thus the official would be protected
by qualified immunity, here we agree with the district court that factual questions
prevent us from reaching such a conclusion.

      Under the fact-intensive analysis of Pickering, the commissioners had to present
evidence that Mr. Riggs's speech adversely affected the efficiency of the county's
operations. See Grantham, 21 F.3d at 294. In Grantham, 21 F.3d at 295 n.4, we
concluded that the officials were entitled to qualified immunity based on "specific and
unrefuted evidence" that the speech in question "substantially disrupted the work
environment." We observed that our holding did not permit an official to obtain

                                          -8-
qualified immunity by "simply asserting [that] the exercise of free speech rights affected
morale," id.

       Here the commissioners argue generally that their actions were justified by the
county's concerns about the operation of the office, possible defamation claims, and the
integrity of the county's grievance process and sexual misconduct reporting practices.
They also cite a letter from the secretary's attorney stating that after Mr. Riggs's
discharge, a hostile work environment existed when a member of the public entered the
road department office, made a sexual remark apparently directed to the secretary, and
her co-workers laughed.

        According to the plaintiffs' affidavits, they noticed that the morale of the road
crew employees (other than the secretary) improved after Mr. Riggs reported the
incident. Once the report was made, they were relieved; they believed that the county
commissioners would address the problem, and that the ongoing stress created by the
relationship between Mr. Person and the secretary would be eliminated. The plaintiffs
also attested that after the incident was reported, they continued to perform their work
in the same way they had performed it in the past, although there were times that were
"very stressful."

       Because there are factual disputes regarding the impact of Mr. Riggs's speech,
we are unable to determine whether his interest in his speech outweighed the county's
interest in functioning effectively; for the same reason, we cannot decide whether it was
clearly established that his speech was entitled to first amendment protection. We
therefore conclude that the district court properly refused to grant summary judgment,
based on qualified immunity, to the county commissioners on Mr. Riggs's first
amendment claims.




                                           -9-
                                           VI.
        Turning to the first amendment claims of the other four plaintiffs, we examine
the "content, form, and context," Connick, 461 U.S. at 147-48, of the speech that the
letter, which was read to them, prohibited. The letter permitted the employees to
discuss outside the working environment the incident reported by Mr. Riggs. The letter
was read to the other plaintiffs after Mr. Riggs was initially terminated and before his
disciplinary hearing. The county commissioners were, of course, already aware of the
alleged incident, and these plaintiffs could provide no additional firsthand knowledge.

       We do not believe that by limiting the time and place for these plaintiffs to
discuss what they had heard from Mr. Riggs, but had not witnessed, that the
commissioners violated clearly established first amendment law. We therefore
conclude that the commissioners are entitled to qualified immunity from liability to
these plaintiffs on their first amendment claims.

                                           VII.
       Although the district court did not address the issue, the county commissioners
also sought qualified immunity from liability on the equal protection claims, the parties
briefed the issue, and we believe that the record on appeal is sufficient for us to resolve
that question. See Hunter, 219 F.3d at 831. We first determine whether the plaintiffs
have asserted a violation of their right to equal protection at all. See Conn, 526 U.S.
at 290.

       The threshold inquiry in an equal protection case is whether the plaintiff is
similarly situated to others who allegedly received preferential treatment. See Klinger
v. Department of Corrections, 31 F.3d 727, 731 (8th Cir. 1994), cert. denied, 513 U.S.
1185 (1995). Here we conclude that the plaintiffs failed to assert an equal protection
violation at all because they did not allege in their complaints that they were treated
less favorably than any other individuals. For this reason, we conclude that the county



                                           -10-
commissioners are entitled to qualified immunity with respect to the equal protection
claims of all of the plaintiffs.

                                           VIII.
       For the reasons given, we reverse that part of the district court's order denying
qualified immunity to the county commissioners in their individual capacity as to the
plaintiffs' equal protection claims and as to plaintiffs Wendell Domina, Linden Snyder,
Van Harpold, and Jerry Soule's first amendment claims, and we remand the case for the
entry of an order granting summary judgment to the county commissioners on these
claims.

       We affirm the part of the district court's order denying summary judgment to the
commissioners in their individual capacity on the question of qualified immunity as to
Mr. Riggs's first amendment claims and denying summary judgment to Mr. Person on
the question of qualified immunity. Because we do not have jurisdiction to review a
sufficiency of the evidence claim in an appeal from the denial of qualified immunity,
see Jones v. Shields, 207 F.3d 491, 494 (8th Cir. 2000), we do not consider the
commissioners' contention that Mr. Riggs presented insufficient evidence of causation
to support his first amendment claim.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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