                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       June 12, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 CARM EN S. SPENCER,

               Plaintiff-Appellant,                     No. 04-6281
          v.                                           (D. Oklahoma)
 CITY OF M ID W EST CITY, a                      (D.C. No. CIV-03-1286-C)
 municipal corporation; M ICHAEL W .
 BOW ER, individually and in his
 official capacity as Fire Chief,

               Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before KELLY, HE N RY, and M U RPH Y, Circuit Judges.


      Carmen S. Spencer formerly worked as the secretary for M ichael W .

Bower, the Fire Chief for M idwest City, Oklahoma. M s. Spencer became

concerned that Chief Bow er was having an improper personal relationship during

his work hours, and she obtained the records for the cell phone that the City had

provided him. Chief Bow er confronted her about the request and told her that he

would recommend her replacement. M s. Spencer refused the C ity M anager’s


      *
        This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.
offer of a transfer to another job and was terminated. She then brought this action

for damages under 42 U.S.C. § 1983, claiming that the transfer offer and

subsequent termination were unlawful retaliation for the exercise of her First

Amendment right to receive information. The district court granted summary

judgment to the City and Chief Bow er (on grounds of qualified immunity), and

M s. Spencer timely appealed. W e exercise jurisdiction under 28 U.S.C. § 1291

and affirm the district court, but for slightly different reasons than those adopted

by the court.



                                I. BACKGROUND

      M s. Spencer was a City employee from February 1990 until her termination

on October 14, 2002. At the time of her termination, she served as C hief Bower’s

administrative secretary. She reported directly and only to him, and performed

work that he assigned to her. M s. Spencer handled confidential and sensitive

information for the fire department, including internal investigations and

personnel and disciplinary matters. She also maintained the fire department’s

employee medical files.

      By September 2002, M s. Spencer had become concerned that Chief Bow er

was having an extra-marital affair. She contacted the City Clerk’s office and later

obtained copies of recent statements for Chief Bower’s City-issued cell phone.

M s. Spencer did not otherwise have access to the cell phone records because his

                                          -2-
monthly statement never came to the fire department and instead was always sent

to the City Clerk’s office. The parties do not dispute that Chief Bow er’s phone

bill was a public record available for public inspection under the state’s Open

Records Act. See O KLA . S TAT . tit. 51, § 24A.5. Under the Act and the C ity’s

procedures, an interested individual who submits a records-request form to the

City Clerk’s office and pays for any requested copies may receive certain publicly

available records.

      The record is unclear as to the form and number of M s. Spencer’s requests

for Chief Bow er’s phone records. M s. Spencer testified in her deposition that she

did not provide a reason when requesting the cell phone records from the City

Clerk’s office. Sandra Gramlich, an employee in the City Clerk’s office who

provided the records to M s. Spencer, testified that M s. Spencer made two

requests: one oral request, and another request in which she completed a written

form. W hen M s. Spencer initially called for any records, she did not state that

she was requesting the records pursuant to the Open Records Act. M s. Gramlich

believed that M s. Spencer was requesting copies of the phone records on behalf of

Chief Bow er because M s. Spencer was his administrative secretary. Further, no

testimony indicates that M s. Spencer ever paid for copying costs of the records

that she requested.

      On October 1, 2002, Chief Bow er learned about M s. Spencer’s request for

his phone records and confronted her. M s. Spencer explained that she wanted to

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know with whom he was talking. Chief Bow er then told her that he could not

trust her anymore and would be recommending her replacement. Chief Bow er

again met with M s. Spencer the next morning and advised her of his

recommendation to terminate her employment. He also claims that during this

conversation he ordered her to report to the Human Resources Department before

she left the City offices. M s. Spencer did not report, but testified that she did not

recall being told to see the Human Resources Director.

      The next day, Chief Bow er recommended to the City’s Administrative

Review Board (“the Board”) that M s. Spencer be terminated. His letter to the

Board stated that her recent actions had been “unprofessional and unacceptable”

because she “procured a copy of [his] cell phone record representing that she was

authorized to make this request.” Aplt’s Sealed App. at 6. He considered this “an

unauthorized and inappropriate acquisition of official city records.” Id. Chief

Bower also noted that M s. Spencer did not report to the Human Resources

Director, as he had ordered, and her failure to report was “direct insubordination.”

Id. On October 4, 2002, the Board recommended that the City M anager terminate

M s. Spencer, based in part on her “attempt[] to conduct an unauthorized

investigation[,] thus procuring by false pretenses a copy of Chief Bower’s cell

phone bill.” Id. at 8.

      M s. Spencer appealed the recommendation to the City M anager, Charles

Johnson. In a handwritten appeal to City M anager Johnson, M s. Spencer wrote

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that “I have worked over 12 years in what I consider ‘cover-up’ behavior I’ve

been required to condone at the risk of losing my job.” Id. at 10. She added: “I

obtained the records in an attempt to clear my own conscience that the numerous

phone calls and absenteeism were all innocent. The record was only for my

viewing and there was no intent to share it with anyone.” Id. M s. Spencer later

met w ith City M anager Johnson and the Human Resources Director, Tim Lyon.

According to these men, M s. Spencer stated during their meeting that she believed

Chief Bow er was having an affair, and she planned to call Chief Bow er’s wife

and children if the records confirmed her suspicion. M s. Spencer also stated at

the meeting that she could no longer work for Chief Bow er because she did not

trust him.

      Based on the deterioration in her relationship with Chief Bower, City

M anager Johnson offered M s. Spencer another job as a clerk in the City Clerk’s

office. The clerk position paid less than her position with Chief Bow er. The

City maintains that, as part of the proposed transfer, her existing salary would

have been preserved for one year. If another administrative position with the City

became available, she could have applied for it and would have been paid her

current salary if she had obtained it. M s. Spencer contends that she was not

informed of these conditions related to a transfer. She would not accept the

transfer and would not resign. City M anger Johnson subsequently terminated her

employment effective October 14, 2002.

                                         -5-
      M s. Spencer filed this suit for damages under 42 U.S.C. § 1983. She

claimed that the City and Chief Bow er unlawfully retaliated against her, by an

unwanted transfer offer and subsequent termination, for the exercise of her First

Amendment right to receive information.

      The district court granted summary judgment in favor of the City and Chief

Bower. The court first construed M s. Spencer’s complaint as a claim for

wrongful termination and examined the evidence for (1) participation in a

protected activity, (2) an adverse employment action against her, and (3) a causal

connection between the protected activity and the adverse employment action.

Rec. vol. II, at 513 (Dist. Ct. Order, filed Aug. 24, 2004) (citing Hudson v.

Norris, 227 F.3d 1047, 1050-51 (8th Cir. 2000)). The district court concluded

that “under the undisputed facts [M s. Spencer] did not suffer an adverse

employment action,” and granted summary judgment with respect to the unlawful

termination claim. Id. The court also granted qualified immunity to Chief Bow er

after determining that M s. Spencer failed to demonstrate the existence of a clearly

established right of a public employee to receive information in this context. M s.

Spencer timely appealed the district court’s grant of summary judgment.



                                 II. D ISC USSIO N

      Summary judgment is appropriate “if the pleadings, depositions, answ ers to

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

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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.” F ED . R. C IV . P. 56(c). “W e review

grants of summary judgment de novo to determine whether any genuine issue of

material fact exists, viewing all evidence and any reasonable inferences that

might be drawn therefrom in the light most favorable to the non-moving party.”

Croy v. Cobe Labs., Inc., 345 F.3d 1199, 1201 (10th Cir. 2003). “[W]e have

discretion to affirm on any ground adequately supported by the record so long as

the parties have had a fair opportunity to address that ground.” M aldonado v.

City of Altus, 433 F.3d 1294, 1302-03 (10th Cir. 2006) (internal quotation marks

and citation omitted).

A.    Application of the Connick/Pickering framew ork

      The Supreme Court has made it clear that public employees do not

surrender their First Amendment rights by virtue of their government

employment. Connick v. M yers, 461 U.S. 138, 140 (1983). However, “when the

government acts as an employer, the First A mendment does not apply with full

force.” Arndt v. Koby, 309 F.3d 1247, 1251 (10th Cir. 2002). “The government’s

interest in achieving its goals as effectively and efficiently as possible is elevated

from a relatively subordinate interest when it acts as a sovereign to a significant

one when it acts as employer.” Waters v. Churchill, 511 U.S. 661, 675 (1994).

Courts therefore have adopted a four-factor test to determine whether the

government as an employer can regulate a public employee’s speech or alter her

                                          -7-
conditions of employment without violating her First Amendment guarantees.

      For a public employee to prevail against her governmental employer on a

First Amendment claim of retaliation, the employee must first prove that her

speech involved a matter of public concern. See Connick, 461 U.S. at 146

(“W hen employee expression cannot be fairly considered as relating to any matter

of political, social, or other concern to the community, government officials

should enjoy wide latitude in managing their offices, without intrusive oversight

by the judiciary in the name of the First A mendment.”). Second, the public

employee’s interest “in commenting upon matters of public concern” must

outweigh the public employer’s interest “in promoting the efficiency of the public

services it performs through its employees.” Pickering v. Bd. of Educ., 391 U.S.

563, 568 (1968).

      Third, the speech must be “a substantial motivating factor behind the

employer’s decision to take an adverse employment action against the employee.”

M aestas v. Segura, 416 F.3d 1182, 1187 (10th Cir. 2005) (internal quotation

marks omitted). Finally, if the public employee satisfies the first three prongs,

she succeeds unless “the employer establishes it would have taken the same action

in the absence of the protected speech.” Id. The first two prongs are legal

questions to determine whether the speech is constitutionally protected, and the

final tw o steps involve questions of fact. Id. at 1187-88.

      For purposes of this appeal, we will assume (as the district court and

                                          -8-
parties have) that M s. Spencer’s request for and inspection of Chief Bower’s

phone records are “speech” under the First Amendment. See Rec. vol. II, at 513

(“[a]ssuming[] w ithout deciding,” at the beginning of the district court’s

discussion, that M s. Spencer “engaged in a protected activity” under the First

Amendment); Aple’s Br. at 51 (arguing that Chief Bow er was entitled to the

defense of qualified immunity “because it is not clearly established that Spencer’s

alleged exercise of First Amendment rights, in the context of this case, involved a

matter of public concern”). But see Houchins v. KQED, Inc., 438 U.S. 1, 9 (1978)

(noting that the Supreme Court “has never intimated a First Amendment guarantee

of a right of access to all sources of information within government control”);

Capital Cities M edia, Inc. v. Chester, 797 F.2d 1164, 1165-67 (3d Cir. 1986)

(rejecting a newspaper’s First Amendment challenge to the denial of access to

various records in the sole possession of the state’s environmental agency).

      W e also assume without deciding that M s. Spencer’s speech involved a

matter of public concern, and we therefore examine her claim under the Pickering

balancing framework. See, e.g., M atthews v. Columbia County, 294 F.3d 1294,

1296 (11th Cir. 2002) (analyzing a county employee’s claim that she was

terminated in retaliation for her comments about a company with which the

county was considering contracting, and stating that “[f]or the purposes of this

appeal, we will assume (without deciding) that Plaintiff’s speech is protected by

the First A mendment”); Weisbuch v. County of Los Angeles, 119 F.3d 778, 782

                                         -9-
(9th Cir. 1997) (assessing a county medical director’s claim that he was demoted

in retaliation for speaking to his supervisor, and “assum[ing] without deciding

that [the plaintiff’s] threatened communication to the Board of Supervisors w ould

implicate matters of public concern” and “also assum[ing] without deciding that

this private threat to make a public disclosure of disagreement with department

policy, without having done so, is within the ambit of speech protected by the

First A mendment”).

      The district court did not consider M s. Spencer’s claim under Pickering.

W e can nonetheless proceed because this is a legal question reviewable de novo,

the record is sufficient to allow us to do so appropriately, and the parties raised

the issue in briefing. See Maldonado, 433 F.3d at 1302-03; Koch v. City of

Hutchinson, 847 F.2d 1436, 1441 & n.14 (10th Cir. 1988) (en banc).

B.    Pickering balancing test

      The Pickering balancing test “requires full consideration of the

government’s interest in the effective and efficient fulfillment of its

responsibilities to the public,” Connick, 461 U .S. at 150, weighed against M s.

Spencer’s interest in obtaining and reviewing Chief Bower’s phone records. W e

consider the “manner, time, and place of the employee’s expression” when

balancing these interests. Rankin v. M cPherson, 483 U.S. 378, 388 (1987).

Relevant considerations include whether M s. Spencer’s acquisition and inspection

of Chief Bow er’s phone records (1) “impair[ed] discipline by superiors or

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harmony among co-workers,” (2) “ha[d] a detrimental impact on close working

relationships for which personal loyalty and confidence are necessary, or” (3)

“impede[d] the performance of [her] duties or interfere[d] with the regular

operation of the enterprise.” Id.

      “[A]n employees’s First Amendment rights may not be restricted unless the

employer shows that some restriction is necessary to prevent the disruption of

official functions or to insure effective performance by the employee.” Dill v.

City of Edmond, 155 F.3d 1193, 1203 (10th Cir. 1998) (internal quotation marks

omitted). The City “cannot rely on purely speculative allegations” that the

request for and inspection of the records “caused or will cause disruption.” Id.

(quotation marks omitted). However, “the government need not wait for speech

actually to disrupt core operations before taking action.” Belcher v. City of

M cAlester, 324 F.3d 1203, 1209 n.7 (10th Cir. 2003) (internal quotation marks

omitted).

      After considering several relevant Pickering factors in light of the totality

of the circumstances, we conclude that the City’s interest in the effective

functioning of the fire department outweighs M s. Spencer’s interest in acquiring

and reviewing Chief Bower’s phone records.

      First, we recognize that “a w ide degree of deference” is given to the City’s

personnel decision in light of the “close working relationship[]” between Chief

Bower and his administrative secretary; such a confidential relationship is

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“essential to fulfilling public responsibilities.” Connick, 461 U.S. at 151-52. Our

court has specifically recognized “a heightened governmental interest in

maintaining harmony among fire department employees.” Belcher, 324 F.3d at

1209 (concluding that a city’s interest in harmony in its fire department

outweighed a city firefighter’s interest in contacting city council members and

expressing concerns about the purchase of a fire truck) (internal quotation marks

omitted). As Chief Bow er’s administrative secretary, M s. Spencer handled

confidential and sensitive information. W hen a public official like Chief Bow er

requires loyalty and trust in a confidential employee, we are particularly hesitant

to interfere with his determination that the employee has compromised that

relationship. As the Seventh Circuit noted, “[y]ou cannot run a government with

officials who are forced to keep [their] enemies as their confidential secretaries.”

Soderbeck v. Burnett County, 752 F.2d 285, 288 (7th Cir. 1985).

      Second, we consider whether M s. Spencer’s request for the phone records

impeded her ability to perform her office duties. She contacted M s. Gramlich in

the City Clerk’s office by phone during regular office hours–not as a regular

citizen, but as the fire chief’s administrative secretary–to acquire any available

records for Chief Bow er’s City-issued cell phone. M s. Spencer later obtained

copies of the records without payment. M oreover, the record show s that M s.

Spencer’s suspicion of Chief Bow er’s extra-marital activities did not manifest

itself exclusively in her request for his phone records. M s. Spencer stated in her

                                         -12-
deposition that she discussed Chief Bower’s possible extra-marital activities w ith

at least four other City employees.

      Third, M s. Spencer’s responses to Chief Bow er’s questions–after he

discovered she had requested his phone records–unquestionably had a detrimental

effect on their working relationship. W hen Chief Bow er confronted M s. Spencer

about the request on October 1, 2002, she stated that she had seen him speaking

with a woman who was not his w ife in the City’s parking lot and also wanted to

know with whom he had been speaking on the phone. Chief Bow er told her that

he could not trust her anymore and would be recommending her replacement. M s.

Spencer replied that she no longer trusted him. Further, City M anager Johnson

and M r. Lyon stated in their affidavits–and M s. Spencer does not contest this–that

she told them during her appeals meeting that she could no longer work for Chief

Bower because of the loss of trust. The series of events related to M s. Spencer’s

request for the phone records indisputably affected the harmony of Chief Bower’s

office and eroded his trust in M s. Spencer as a loyal administrative secretary;

likewise, M s. Spencer apparently had no desire to continue in this working

relationship.

      Fourth, and significantly, M s. Spencer’s personal motive in requesting

Chief Bower’s cell phone records also weighs against her First Amendment claim.

“[I]nsofar as self-interest is found to have motivated public-employee speech, the

employee’s expression is entitled to less weight in the Pickering balance than

                                         -13-
speech on matters of public concern intended to serve the public interest.”

O’Connor v. Steeves, 994 F.2d 905, 915 (1st Cir. 1993). Even if Chief Bower’s

publicly available phone records had some inherent public concern, a proposition

that we assume but do not resolve here, under Pickering we can w eigh M s.

Spencer’s interests in those records according to any self-expressed motive in

acquiring them.

      Thus, we attribute less weight to M s. Spencer’s interest because she wanted

the records “to clear [her] conscience that the numerous phone calls and

absenteeism were all innocent.” Aplt’s Sealed App. at 10. She made clear in her

appeal to City M anager Johnson that “[t]he record was only for [her] viewing and

there was no intent to share it with anyone.” Id. During her appeal procedures

with the City, M s. Spencer did not indicate a motive to obtain the phone records

to facilitate public interest. M oreover, she admitted in her deposition that during

her City employment she had never complained to Chief Bower, the City

M anager’s office, or the Human Resources Department that Chief Bow er was

misusing City funds or unnecessarily absent from work.

      Given M s. Spencer’s private motives to acquire the phone records, this case

can be distinguished from one in which a public employee seeks to uncover public

corruption in a “good-faith whistleblowing context.” Hufford v. M cEnaney, 249

F.3d 1142, 1150 (9th Cir. 2001). Our court has previously noted that “[w]hen

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

                                         -14-
First Amendment interest is entitled to greater weight where he is acting as a

whistle blower in exposing government corruption.” Conaway v. Smith, 853 F.2d

789, 797 (10th Cir. 1988); see also Prager v. LaFaver, 180 F.3d 1185, 1191 (10th

Cir. 1999) (noting that a state employee’s “whistle blowing activity,” which

consisted of a letter critical of his department that he had sent to the G overnor,

was “entitled to substantial weight” under Pickering). Based on M s. Spencer’s

written appeal to City M anager Johnson and her statements during the appeal

procedures, we conclude that her activities were not expressly directed to the

public or the media. Instead, she was interested to learn about the phone records

“to clear [her] own conscience” and had “no intent to share [them] w ith anyone.”

Aplt’s Sealed App. at 10.

      Finally, we consider Chief Bow er’s statement in his Board letter that M s.

Spencer did not report, as he had ordered her, to the Human Resources

Department. M s. Spencer testified that she does not remember Chief Bow er

ordering her to report. “Employee acts of insubordination may tip the balancing

process in favor of the employer’s interests in the efficient promotion of its

services.” Barnard v. Jackson County, 43 F.3d 1218, 1224 (8th Cir. 1995).

W hile this factor is not dispositive, it also favors the City’s interests in

terminating M s. Spencer’s employment under Pickering.

      In sum, the City’s interest in an efficient and harmonious operation of the

fire department outweighs M s. Spencer’s interest in inspecting Chief Bower’s

                                           -15-
phone records out of a predominantly personal motive. Therefore, the City did

not terminate M s. Spencer in violation of her First A mendment rights as a public

employee. Because her inspection of the records was not entitled to First

Amendment protection, we need not reach the defense of qualified immunity that

Chief Bow er raises. 1



                               III. C ON CLU SIO N

      Accordingly, on grounds different from the district court, we AFFIRM the

grant of summary judgment to the C ity and Chief Bower.



                                Entered for the Court,



                                Robert H. Henry
                                Circuit Judge




      1
       Though we resolve this appeal on other grounds, we note our disagreement
with the district court’s conclusion that the City took no adverse employment
action against M s. Spencer. Evidence in the record, sufficient to preclude
summary judgment, indicates that M s. Spencer was being offered an involuntary
demotion to the City Clerk’s office, where her pay and benefits would be
preserved only for one year. See, e.g., Schuler v. City of Boulder, 189 F.3d 1304,
1309 (10th Cir. 1999) (“[D ]eprivations less harsh than dismissal . . . nevertheless
violate[] a public employee’s rights under the First A mendment.”).

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