                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                      September 4, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
ROBERT PADEN,

             Plaintiff-Appellee,

v.                                                         No. 12-6041
                                                   (D.C. No. 5:10-CV-01355-M)
TED KEELING,                                              (W.D. Okla.)

             Defendant-Appellant,

and

BOARD OF THE COUNTY
COMMISSIONERS OF THE COUNTY
OF TEXAS,

             Defendant.


                            ORDER AND JUDGMENT*


Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and
BALDOCK, Circuit Judge.




*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Ted Keeling appeals from the district court’s order denying summary judgment

based on qualified immunity. We dismiss the appeal for lack of jurisdiction.

                                           I.

      Plaintiff Robert Paden brought this 42 U.S.C. § 1983 action against his former

employer, the Texas County Board of County Commissioners, and Keeling, his

former supervisor, alleging that he was terminated in violation of his rights of free

speech and free association under the First Amendment. In his complaint, Paden

alleged that while Keeling was running for re-election to the position of County

Commissioner, Paden supported Keeling’s opponent in the July 2010 primary

election. Paden claimed that Keeling later terminated his employment in August

2010 in retaliation for his exercise of his First Amendment rights.

      Keeling filed a motion for summary judgment, arguing that there was

insufficient evidence in the record from which a trier of fact could reasonably

conclude that Paden’s speech was a substantial or motivating factor in his

termination. See Ballard v. Muskogee Reg’l Med. Ctr., 238 F.3d 1250, 1252

(10th Cir. 2001) (listing as an element of First Amendment retaliation claim against

employer that speech was a substantial or motivating factor in the adverse

employment decision). Keeling contended the evidence overwhelmingly established

that he terminated Paden based on his insubordinate conduct in using profane

language. Keeling also argued that the evidence showed he would have terminated

Paden regardless of Paden’s protected speech. See id. (holding if employee


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establishes all elements of First Amendment retaliation claim, burden shifts to

defendant to show he would have made the same decision in absence of protected

conduct). Keeling asserted that he should be granted summary judgment on Paden’s

freedom-of-association claim on the same bases. Finally, Keeling contended that he

was entitled to qualified immunity because his termination of Paden based on

Paden’s use of profane language was objectively reasonable under the circumstances.

      Paden responded that questions of material fact existed as to Keeling’s

motivation in terminating his employment and whether Keeling would have

terminated him absent his protected speech and political association. More

specifically, Paden contended that Keeling’s reliance on a county policy against

using profane language was a pretext for his true motivation in terminating Paden.

He also argued the evidence showed that Keeling knew or should have known that

terminating an employee for exercising his First Amendment rights was a violation of

the law.

      The district court denied Keeling’s summary judgment motion. The court first

summarized the conflicting evidence presented by the parties. Because Keeling

argues that the district court’s findings were insufficient, we relate them in their

entirety here:

            Plaintiff was an at-will employee for . . . District 1 of the
      defendant Texas County Board of County Commissioners (“County”).
      Keeling served as plaintiff’s foreman. Keeling was later elected as
      commissioner in 2006.



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       Upon plaintiff’s employment, plaintiff received a copy of the
Employee Personnel Policy Handbook for Texas County and signed an
Acknowledgment Form. County policy prohibits employees from
participating in campaigning or political activity during work hours.
County policy also prohibits employees from fighting, obscene or
abusive language, threatening language, and insubordination.

       On a few occasions, Keeling took informal corrective action
against plaintiff by speaking with him about his behavior. In 2008 or
2009, Keeling told plaintiff to refrain from using foul language in the
office around the secretaries. Plaintiff disputes that Keeling has ever
enforced County’s policy.

       In 2008, plaintiff ceased seeing Keeling socially and decided that
he and Keeling were no longer friends. Plaintiff alleges that three to
four months prior to Keeling’s re-election, Keeling began to treat
plaintiff differently.

       In 2010, Keeling ran for re-election against party-opponent Ruth
Teel (“Teel”). Plaintiff did not hold any official role in Teel’s
campaign, formally campaign for her, or display any of Teel’s
paraphernalia. However, plaintiff alleges that he told friends and
acquaintances to vote for Teel. Plaintiff further alleges that nine other
employees supported Teel.

       Based upon rumors, plaintiff told people that if Keeling won, he
would terminate six or seven people in District 1. Keeling heard rumors
that the election was being discussed among employees during the day.
During a regularly scheduled morning meeting, Keeling told employees
that they were entitled to vote however they wanted, but it was a
violation of County policy to talk about it at work. Purportedly, during
the meeting, Keeling accused plaintiff and others of campaigning for his
opponent.

       According to plaintiff, after the election, Keeling referred to
plaintiff as a “f-ing liar” and/or said it was an “f-ing lie” in regards to
plaintiff’s assertion that plaintiff reported his equipment needed
maintenance. However, prior to the 2010 campaign, Keeling also
accused plaintiff of lying about an incident where plaintiff reported road
damage by a private bulldozer.



                                   -4-
Aplt. App., Vol. 2 at 624-25.1

       The district court held that genuine issues of material fact precluded summary

judgment because “a rational jury could infer that [Paden’s] speech was a substantial

or motivating factor to [his] termination.” Id. at 628. The court based that

conclusion upon the evidence that “Keeling accused [Paden] and others of

campaigning for his opponent and saying bad things about Keeling” and “evidence

that, prior to [Paden’s] termination, Keeling never took corrective action against

other employees for use of profane language.” Id. (quotation, brackets, and ellipsis

omitted). The court also held that “a rational jury could infer that Keeling would not

have terminated [Paden] in the absence of [his] political speech because, as discussed

above, Keeling never took corrective action against other employees for use of

profane language.” Id. On the same bases, the district court also concluded that a

reasonable jury could infer that Paden’s political association was a substantial or

motivating factor behind his termination. Accordingly, the court held that Keeling

was not entitled to summary judgment on either of Paden’s claims.

       The court also held that, in light of its findings, Paden had presented sufficient

evidence to support a violation of his First Amendment rights, which were clearly

established at the time of Keeling’s alleged misconduct. Therefore, the court denied

Keeling’s motion for summary judgment based on qualified immunity.
1
      The district court stated that it had set forth the facts in the light most
favorable to Paden. See Aplt. App., Vol. 2 at 624 n.1.


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                                            II.
       On appeal, Keeling argues that the district court erred in holding that Paden

established a constitutional violation. He asserts further that a reasonable

Commissioner in his position would not understand that his actions violated Paden’s

constitutional rights. Before proceeding to the merits, we must address our

jurisdiction over Keeling’s appeal. While neither party has raised a jurisdictional

question, we have “an independent obligation to examine [our] own jurisdiction.”

Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1276 (10th Cir. 2001).

       Although a district court’s denial of a summary judgment motion seeking

qualified immunity is immediately appealable, the right to appeal is limited to

“purely legal issues.” Morris v. Noe, 672 F.3d 1185, 1189 (10th Cir. 2012)

(quotation and brackets omitted). Specifically, “[a] party may not appeal the district

court’s determination that factual issues genuinely in dispute preclude summary

adjudication.” Id. (quotation omitted). And “we may not consider whether the

district court correctly identified the set of facts that the summary judgment record is

sufficient to prove.” Id. (quotation omitted). Consequently, we must assume the

facts as found by the district court, and we may review only the legal determination

that those facts are sufficient to establish a violation of a constitutional right that was

clearly established. See id.

       The district court in this case denied summary judgment for two reasons, one

of which is appealable and one of which is not. See id. The court first determined

that material factual issues remained on Paden’s constitutional claims. It also held
                                         -6-
that Keeling was not entitled to qualified immunity based on the facts viewed most

favorably to Paden. “We have jurisdiction over only the latter determination,” id.,

but Keeling raises only issues related to the district court’s determination that there

are genuine issues for trial.

       Keeling first argues that Paden did not present sufficient evidence to establish

that his termination was substantially motivated by his protected speech or his

political association. Keeling devotes most of his opening appellate brief to a

discussion of the evidence, and he asserts (incorrectly) that this court reviews the

record de novo to determine whether the district court erred in determining that

summary judgment was precluded by factual issues genuinely in dispute. While it is

clear that Keeling disagrees with the court’s conclusion that a reasonable jury could

find that Paden’s termination was motivated by his exercise of his First Amendment

rights of speech and association, we have no jurisdiction to review that

determination. Mascorro v. Billings, 656 F.3d 1198, 1204 n.6 (10th Cir. 2011) (“We

will not hear an appeal when the question is the sufficiency of the evidence or the

correctness of the district court’s findings with respect to a genuine issue of material

fact.”).

       Although we would have jurisdiction to review the district court’s legal

determination that Keeling was not entitled to qualified immunity based on the facts

viewed most favorably to Paden, see Morris, 672 F.3d at 1189, Keeling has not raised

that argument on appeal. Instead, regarding the district court’s denial of qualified


                                          -7-
immunity, he maintains once again that there is no evidence he was motivated at all

by Paden’s protected speech or political association. And Keeling contends that

under his version of the facts—namely, that Paden was terminated based solely on his

use of profane language—Paden failed to show a violation of any clearly established

constitutional right. Keeling’s argument simply asks us to review the district court’s

conclusion that a jury could find his termination decision to have been substantially

motivated by Paden’s protected conduct. See Armijo v. Perales, __ F.3d __,

2012 WL 3104907, at *7 (10th Cir. Aug. 1, 2012). We have no jurisdiction to do so.

Id.

      Finally, Keeling argues that the district court made no findings as to the facts

in this case. He does not elaborate on the significance of that assertion, but in any

event, his claim is belied by the record. As demonstrated by the portion of the

district court’s order quoted above, the court did provide a summary of the evidence.

The court then emphasized Keeling’s accusation that Paden had been campaigning

for his opponent and Keeling’s previous failure to take corrective action against

employees for using profane language, before concluding that a rational jury could

infer that Paden’s speech and political association were substantial or motivating

factors in his termination. Importantly, “[e]ven if the district court erred in reaching

that finding, we would not have jurisdiction to review that fact-based determination”

in this appeal. Armijo ex rel. Chavez v. Wagon Mound Pub. Schs., 159 F.3d 1253,

1259 (10th Cir. 1998). Nor is this a case where the lack of factual findings by the


                                          -8-
district court requires us to “look behind the order denying summary judgment” and

“review the entire record, construing the evidence in the light most favorable to the

plaintiff, [to] determine de novo whether the plaintiff in fact presented sufficient

evidence to forestall summary judgment on the issue of qualified immunity.” Id.

                                          III.

      Because Keeling fails to make any argument over which we have appellate

jurisdiction, we dismiss the appeal. See Gray v. Baker, 399 F.3d 1241, 1247-48

(10th Cir. 2005) (dismissing for lack of jurisdiction appeal of denial of summary

judgment based on qualified immunity where “arguments involve[d] the district

court’s determinations of evidence sufficiency”).

      The appeal is DISMISSED for lack of jurisdiction.


                                                 Entered for the Court


                                                 John C. Porfilio
                                                 Senior Circuit Judge




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