                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 20 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    STEVEN KING,

                Plaintiff - Appellant,
                                                          No. 02-5029
    v.                                              (D.C. No. 01-CV-149-K)
                                                       (N.D. Oklahoma)
    JIM DOWNING, SR.,

                Defendant - Appellee.


                             ORDER AND JUDGMENT           *




Before KELLY , McKAY , and O’BRIEN , 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.

         Steven King appeals the district court’s dismissal of his 42 U.S.C. § 1983

complaint alleging his supervisor violated his First Amendment rights. King,



*
      This order and judgment is not binding precedent, except under the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.
a paid firefighter with the Berryhill Fire Protection District at the time of his

complaint, alleges Jim Downing, Sr., the volunteer chief of the Fire District,

restrained him from speaking about (a) allegations a coworker had misspent

money from a publicly funded volunteer association fund; (b) allegations about an

attempted theft of publicly donated charitable funds; (c) allegations of

unauthorized use of a gas credit card by unknown persons; (d) his complaints that

the Fire District had allowed his health insurance to lapse; and (e) his interest in

forming a union. King alleges that Downing threatened to fire him.

       Downing responds he did not restrain King’s speech, but only admonished

King to stop his continual gossip and idle talk accusing others of

misappropriation and theft because King had no proof of any wrongdoing and

Downing feared King’s ceaseless and unfounded accusations were causing morale

problems within the department. Downing contends that he took no adverse

employment action against King.

       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. Myers , 461 U.S. 138, 142 (1983).

“However, when the government acts as an employer, the First Amendment does

not apply with full force.”   Arndt v. Koby , 309 F.3d 1247, 1251 (10th Cir. 2002)

(quotation omitted). “Thus, the government as employer ‘may impose restraints


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on the job-related speech of public employees that would be plainly

unconstitutional if applied to the public at large.’”   Id. (quoting United States v.

Nat’l Treasury Employees Union       , 513 U.S. 454, 465 (1995)).

       When a government employer has allegedly taken adverse action
       because of an employee’s exercise of [his] free speech, we apply the
       test derived from Pickering v. Board of Education , 391 U.S. 563
       (1968), and Connick [ ] , 461 U.S. 138. That four-part test asks the
       following questions:

       1. Whether the speech in question involves a matter of public
       concern.
       2. If so, we must weigh the employee’s interest in the expression
       against the government employer’s interest in regulating the speech
       of its employees so that it can carry on an efficient and effective
       workplace.
       3. Employee must show the speech was a substantial factor driving
       the challenged governmental action.
       4. If so, can the employer show that it would have taken the same
       employment action against the employee even in the absence of the
       protected speech?

Kent v. Martin , 252 F.3d 1141, 1143 (10th Cir. 2001) (citations and quotation

omitted).

       Applying the Pickering/Connick balancing test, the district court granted

summary judgment in favor of Downing. It concluded that the issue of King’s

lapsed insurance and his interest in forming a union failed at the first step,

because both involved personnel issues, not protected speech that touched on

matters of public concern.     See Connick , 461 U.S. at 146 (holding that if the

speech in question does not address a matter of public concern, there is no First


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Amendment violation). The district court further concluded that King’s claims

regarding the volunteer association fund issue, the purported theft of charitable

donations, and the alleged misuse of a gas credit card failed at the third and

fourth step, because King did not show that Downing took      any detrimental or

adverse action against him.

              We review the grant of summary judgment de novo, applying
       the same standard as did the district court. Summary judgment is
       proper 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 a judgment as a matter of law. In cases involving
       the First Amendment, the de novo standard is appropriate for the
       further reason that in 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.

Arndt , 309 F.3d at 1250-51 (citations, quotations and alterations omitted).

       On appeal, King first contends the district court erred in dismissing his

claim relating to his union organizing communications. King does not dispute the

district court’s conclusion, applying the   Pickering/Connick test, that King’s

communications relating to forming a union did not involve matters of public

concern. 1 Rather, he contends the district court erred in applying the


1
      We note that an employee’s speech or activity does not touch on a matter of
public concern merely because it is union-related. Rather, courts consider the
content, form, motive and context of the communications, as revealed by the
whole record. See David v. City & County of Denver , 101 F.3d 1344, 1355
                                                                     (continued...)

                                            -4-
Pickering/Connick “public concern” balancing test to this claim. First, he argues

the test is inapplicable because of his contention that Downing violated his First

Amendment associational rights as well as his free speech rights. This court has

recognized that the Pickering/Connick public concern test “may be an inapt tool

of analysis” in some public employee/free association contexts.             Schalk v.

Gallemore , 906 F.2d 491, 498 n.6 (10th Cir. 1990). The district court correctly

ruled, however, that where the free speech and free association claims are

identical, as they are in this case, application of the   Pickering/Connick public

concern test is appropriate.     See id .

       Second, King argues a more appropriate analysis would be that used by the

Fifth Circuit in Texas State Teachers Ass’n v. Garland Independent School

District , 777 F.2d 1046 (5th Cir. 1985). In that case, the court applied the

“‘material and substantial’” disruption of the school test articulated in         Tinker v.

Des Moines Independent Community School District           , 393 U.S. 503, 513 (1969),

to hold that a written school board policy prohibiting inter-teacher

communications concerning employee organizations during non-classroom hours

was unconstitutional.     Tex. State Teachers Ass’n , 777 F.2d at 1053-55. The


1
 (...continued)
(10th Cir. 1996). “To be protected speech, the expression must sufficiently
inform the issue as to be helpful to the public in evaluating the conduct of
government.” Withiam v. Baptist Health Care of Okla., Inc. , 98 F.3d 581, 583
(10th Cir. 1996) (quotation marks and citation omitted).

                                              -5-
Garland and Tinker analyses, however, are simply not applicable in this case

because they involve the review of speech restrictions in the unique public school

setting, whereas the Pickering/Connick tests are applicable in the “more general

public setting.”   Miles v. Denver Public Schs. , 944 F.2d 773, 777 (10th Cir.

1991). Moreover, unlike     Garland , there is no allegation here that Downing

imposed a blanket prohibition on all present and future union-related speech by

all or a vast group of employees.   Cf. Nat’l Treasury Employees Union   , 513 U.S.

at 468 (holding unconstitutional a federal law imposing a prior restraint on a

broad range of speech by all federal employees, noting that a widespread, blanket

prohibition on governmental employees’ potential speech “gives rise to far more

serious concerns than could any single supervisory decision”).

       Next, King contends the district court erred in finding no evidence of

adverse employment action with respect to his claims relating to the volunteer

association fund, the alleged theft of charitable donations, and the alleged misuse

of a gas credit card. King made a bare, conclusory allegation that Downing

retaliated against him by threatening to fire him. Nothing in the record, however,

connects this alleged general threat to King’s continued speech about the

volunteer association fund, the alleged theft of charitable donations, or the

alleged misuse of a gas credit card. Once a properly supported motion for

summary judgment is made, “the adverse party ‘must set forth     specific facts


                                          -6-
showing that there is a genuine issue for trial.’”      Anderson v. Liberty Lobby, Inc.   ,

477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e) (emphasis added)).

We agree with the district court’s assessment of the evidence, and conclude that

King presented no “concrete evidence from which a reasonable juror could return

a verdict in his favor.”   See id. , 477 U.S. at 256.

       The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.


                                                          Entered for the Court



                                                          Terrence L. O’Brien
                                                          Circuit Judge




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