                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       September 21, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                            __________________________                     Clerk of Court

 NO RM AN T. M ERK EL,

          Plaintiff - Appellant,

 v.                                                        No. 04-2156
                                                        (D. New M exico)
 FER NA ND O AB EITA ; N IC HOLAS               (D.Ct. No. CIV-02-1596 JB/LAM )
 G A RCIA ,

          Defendants - Appellees.
                         ____________________________

                              OR D ER AND JUDGM ENT *


Before BR ISC OE, HA RTZ, and O’BRIEN, Circuit Judges.




      Norman M erkel was a pilot with Pierce Aviation, Inc., a contractor for the

United States Bureau of Indian Affairs (BIA). Pierce Aviation reassigned M erkel

after Fernando A beita and Nicholas Garcia, two BIA contracting officers,

complained about inappropriate behavior. M erkel then resigned. He sued Abeita

and Garcia, alleging a violation of his First Amendment rights to freedom of




      *
          This order and judgment is not binding precedent except under the doctrines of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.
speech. 1 Specifically, M erkel contended Abeita and Garcia fabricated

information about his actions in retaliation for his statement that he would file a

report alleging unsafe flying conditions.

      Abeita and Garcia moved to dismiss the case on the basis of qualified

immunity. The district court treated the motion as one for summary judgment,

considering declarations and a portion of M erkel’s deposition in addition to the

pleadings. The district court granted summary judgment for A beita and Garcia

and dismissed the case with prejudice. M erkel appealed. W e AFFIRM .

                                      Background

      In 2000, the BIA contracted with Pierce Aviation to provide single engine

airtanker services for the BIA’s firefighting efforts in New M exico and Arizona.

In April 2002, Pierce Aviation hired M erkel as a pilot and in M ay, stationed him

in Ruidoso, New M exico. Abeita w as the BIA Contracting Officer’s

Representative stationed in Albuquerque and Garcia was the BIA Contracting

Officer’s Technical Representative in Ruidoso.

      During the afternoon or evening of June 3, 2002, M erkel and Garcia had a

conversation during which M erkel expressed his extreme dissatisfaction about the

number of hours he was working. According to Garcia, M erkel used abusive




      1
         Merkel also sued Pierce Aviation, its President and CEO, James O. Pierce, and its
employee, Kinney McKinney. These defendants were dismissed with prejudice pursuant
to stipulation.

                                           -2-
language. M erkel then said he was considering filing a “Safecom” report because

he believed the number of hours pilots were required to be on “ready” status was

unsafe and endangered the entire operation. 2 M erkel flew an air support mission

later that same evening and complained to Garcia about the overtime work, again

using abusive language. M erkel denies ever using abusive language with Garcia.

      The next morning, M erkel, who was still upset, approached Garcia and

again “was personally abusive.” (Appellant’s App. at 52.) Garcia, having already

called Abeita the night before to report M erkel’s conduct, made a second call

after the June 4 morning confrontation. Abeita in turn called a representative of

Pierce Aviation, Kinney M cKinney, to express concern about M erkel’s behavior

and its impact on the safety of the operation. Abeita opined that stress might be

causing M erkel’s behavior. Abeita assured M cKinney he had no authority to

specify what action Pierce Aviation should take and his only concern was the

operation’s safety.

      W hen Abeita called back to inform Garcia of his conversation with

M cKinney, Garcia related yet another incident which had occurred that same

morning. A fire alert had been received, and two pilots, M erkel and Carl Irelend,

were dispatched to provide air support. Irelend left at 8:04 a.m., but M erkel



      2
        “A ‘Safecom’ report is a form used by the United States Forest Service, Fire and
Aviation Management . . . ‘to report any condition, observance, act, maintenance
problem, or circumstance which has the potential to cause an aviation-related mishap.’”
(Appellant’s App. at 12.)

                                           -3-
remained on the ground for another fifteen to twenty minutes, walking around his

plane and apparently talking to it. M erkel departed at 8:23 a.m. Garcia was very

concerned about the delay in takeoff because every minute counts during a fire

suppression operation. M erkel contends this time was spent in a routine pre-flight

inspection.

      That afternoon, M cKinney called Abeita to inform him he had spoken with

M erkel and they had agreed to give M erkel some time off, and to use him as a

relief pilot. This met with Abeita’s approval. However, M erkel perceived the

reassignment as a demotion and resigned from his job.

      M erkel sued Abeita and Garcia pursuant to Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging a violation of

his First A mendment rights to freedom of speech. Specifically, he alleged Abeita

and Garcia conspired to manufacture allegations that he had used rude and

abusive language and engaged in unsafe behavior, in retaliation for M erkel’s

comm ent that he might file a Safecom report. He further contended Abeita and

Garcia transmitted those allegations to M cKinney, leading to an adverse

employment action — his reassignment to relief pilot.

      Abeita and Garcia filed a motion to dismiss based on qualified immunity.

Because both parties attached declarations and other exhibits to their briefs on the

motion, the district court treated it as one for summary judgment under Rule 56 of

the Federal Rules of Civil Procedure. After a hearing, the court granted summary

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judgment in favor of Abeita and Garcia, finding they were entitled to qualified

immunity because M erkel did not establish any of the elements of a First

Amendment claim. Of singular import is the district court’s conclusion that

M erkel failed to demonstrate how his speech touched on a matter of public

concern.

                                     Discussion

      W e review a grant of summary judgment based on qualified immunity de

novo, applying the same legal standard used by the district court. Lawmaster v.

Ward, 125 F.3d 1341, 1346 (10th Cir. 1997).

      In cases involving the First A mendment, 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.

Horstkoetter v. Dep’t of Pub. Safety, 159 F.3d 1265, 1270 (10th Cir. 1998)

(quotations omitted).

      Summary judgment is appropriate when “there is no genuine issue as to any

material fact and [] the moving party is entitled to a judgment as a matter of law.”

F ED . R. C IV . P. 56(c). “Conclusory allegations, however, do not establish an

issue of fact under Rule 56.” Baker v. Penn Mut. Life Ins. Co., 788 F.2d 650, 653

(10th Cir. 1986). “[T]he plain language of Rule 56(c) mandates the entry of

summary judgment . . . against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which

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that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). “[A] complete failure of proof concerning an essential

elem ent of the nonmoving party’s case necessarily renders all other facts

immaterial.” Id. at 323.

      To prevail, M erkel had to establish the elements of a First Amendment

violation. W e utilize a multi-tiered approach in evaluating whether a public

employee has demonstrated his employer infringed upon his speech rights:

      [T]he employee must show that (1) the speech in question involves a
      m atter of public concern; (2) his interest in engaging in the speech
      outweighs the government employer’s interest in regulating it; and (3)
      that the speech was a substantial motivating factor behind the
      government’s decision to take an adverse employment action against the
      employee. If an employee proves these three factors, then he must
      prevail unless the employer proves by a preponderance of the evidence
      that it would have reached the same decision even in the absence of the
      protected conduct.

Baca v. Sklar, 398 F.3d 1210, 1218-19 (10th Cir. 2005) (citation and quotations

omitted); see also M artin v. City of Del City, 179 F.3d 882, 886 (10th Cir. 1999). 3

“The first two steps are legal questions which the court resolves to determine

whether the speech is constitutionally protected. The second two steps concern




      3
       Although Merkel was not himself a government employee, he worked for a
government contractor. In Board of County Commissioners of Wabaunsee County,
Kansas v. Umbehr, the United States Supreme Court recognized “the right of independent
government contractors not to be terminated for exercising their First Amendment rights.”
518 U.S. 668, 686 (1996). Thus the analysis developed in government
employer/employee cases to determine whether an impermissible infringement upon First
Amendment rights has occurred is applicable here. Id. at 677-78, 685.

                                           -6-
causation and involve questions of fact.” Dill v. City of Edmond, Okla., 155 F.3d

1193, 1202 (10th Cir. 1998) (citations omitted).

      The first question we must decide is whether M erkel’s speech touched on a

matter of public concern. Connick v. M eyers, 461 U.S. 138, 146 (1983). “W e

have defined matters of public concern as those of interest to the community . .

. .” Lighton v. Univ. of Utah, 209 F.3d 1213, 1224 (10th Cir. 2000). W e focus

“on the motive of the speaker and whether the speech is calculated to disclose

misconduct or merely deals with personal disputes and grievances unrelated to the

public’s interest.” Id.; see also Baca, 398 F.3d at 1219 (“A n employee’s

motivation for speaking is important to our analysis of whether the speech

pertained to matters of public concern.”).

      The record is clear. M erkel’s chief complaint concerned the amount of

time he was required to be “on call” — overtime for which he was paid. M erkel

did not contend he was required to fly for an excessive number of hours, a

situation which could reasonably be said to constitute a safety concern. In fact,

he complained about how little actual flight time was involved during his three

weeks on duty. Defendants acknowledged the amount of time M erkel was

required to be on duty, but also noted actual flight time w as limited to no more

than eight hours for any one duty day.

      Regardless of the manner in which M erkel expressed his concern about the

amount of overtime, at issue is M erkel’s statement he might file a report, not the

                                         -7-
actual filing of the report nor its substance. The district court considered a

Safecom report primarily aimed at workplace safety for employees, not at

political or social concerns, or to the safety of the public. Thus, relying on

Lighton, the court concluded a Safecom report simply “airs grievances of a purely

personal nature.” (A ppellant’s A pp. at 150.) The district court also commented:

“The more specific issue is w hether the statement by [M erkel] that he might file

such a report would be a matter of public concern. The Court does not think one

such statement, in the midst of a dispute w ith a supervisor, satisfies the public

concern requirement.” (Appellant’s App. at 151.) W e agree. Statements which

merely pertain “to a personal dispute and grievance unrelated to the public’s

interest . . . do not merit First Amendment protection.” Baca, 398 F.3d at 1219

(citation and quotations omitted); see also Lighton, 209 F.3d at 1225.

      M erkel argues his “entire conversation [with Garcia] concerned unsafe

flying hours” and thus “pertain[ed] to public safety and hence [was] a matter of

public concern.” (Appellant’s Br. at 22.) However, it is not enough that the

subject matter in a global sense might be of general interest. “W hat is actually

said on that topic must itself be of public concern.” Wilson v. City of Littleton,

Colo., 732 F.2d 765, 769 (10th Cir. 1984). In this case, what M erkel actually said

was he “was considering making an official complaint in the form of a ‘Safecom’

report concerning the excessive duty day policy[,]” or “that maybe [he] would

write a Safecom about it . . . .” (Appellant’s App. at 106, 108.) Such statement

                                          -8-
concerning a speculative action in the future is in the nature of a personal dispute,

especially when considered in the context of the entire conversation which

pertained to M erkel’s personal dissatisfaction with the amount of overtime he was

required to work. Thus, M erkel’s speech, including his Safecom report comment,

was not “calculated to disclose misconduct” but rather an attempt to gain

negotiating leverage, thus, personal in nature and “unrelated to the public’s

interest.” Lighton, 209 F.3d at 1224.

      In this respect, M erkel’s speech is similar to that in Wilson. There, a police

officer placed a black shroud over his badge to mourn the death of an officer from

another town. He was fired for refusing to remove the shroud when ordered to do

so. In affirming the district court’s judgment for the employer, we reviewed the

“content, form, and context of [W ilson’s] statement, as revealed by the whole

record.” Wilson, 732 F.2d at 768 (quotations omitted). W e concluded the

officer’s personal feelings of grief did not rise to a matter of public concern

within the meaning of Connick. Id. at 769.

      The record and the law support the district court’s finding that M erkel’s

statement — which arose from and centered on working conditions and only

tangentially mentioned the possible filing of a Safecom report — did not state a

matter of public concern. M erkel failed to carry his burden of establishing even

the first required element of a First Amendment claim. Thus, we need not discuss

the remaining elements. Celotex, 477 U.S. at 323 (“[A] complete failure of proof

                                          -9-
concerning an essential element of the nonmoving party’s case necessarily renders

all other facts immaterial.”). Abeita and Garcia were entitled to qualified

immunity. Summary judgment was proper. W e affirm.

A FFIRME D.

                                       Entered by the C ourt:

                                       Terrence L. O ’Brien
                                       United States Circuit Judge




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