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

                             FOR THE TENTH CIRCUIT                       November 12, 2015
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
JASON C. CORY,

      Plaintiff - Appellant,

v.                                                        No. 14-3270
                                                 (D.C. No. 2:12-CV-02547-JTM)
CITY OF BASEHOR; LLOYD                                      (D. Kan.)
MARTLEY, Basehor City Police Chief;
ROBERT PIERCE, Police Lieutenant, City
of Basehor Police Department,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and McHUGH, Circuit Judges.
                 _________________________________

      Mr. Cory brought this action alleging state and federal claims related to the

termination of his employment as a police officer for the City of Basehor, Kansas.

The district court granted summary judgment to the defendants on all of his claims

and denied his motion under Fed. R. Civ. P. 59(e) to alter or amend the judgment.

On appeal, he presents a single issue: whether the district court properly granted


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
summary judgment to the defendants on his claim that they terminated his

employment in retaliation for his exercise of his First Amendment rights. We affirm

the district court’s judgment.

                                   BACKGROUND

      The undisputed facts are as follows.1 Mr. Cory began his employment with the

Basehor Police Department in September 2007. During his employment he reported

to his superiors a number of issues involving alleged violations of the department’s

policies that he believed affected safety and integrity in the department.

      In particular, he reported that officers kept unloaded shotguns in patrol

vehicles; officers had placed shotguns into the trunks of their vehicles rather than

keeping them in the passenger compartment where they would be accessible to the

officer; there were problems with the camera in his patrol vehicle; the holster the

department provided was incorrect for the sidearm the department had issued to him;

the tires on his patrol car were bald; an officer had made a threat of physical violence

against him on the telephone; and he had observed his fellow officers going home or

to the office to sleep on the job instead of remaining on patrol, making those officers

unavailable to provide backup. He also alleged that he received conflicting direction

from Lloyd Martley, the City’s police chief, and Robert Pierce, its police lieutenant,


      1
        The district court deemed admitted the facts defendants presented in their
summary-judgment motion because Mr. Cory failed to dispute these facts as required
by Rules 56.1(a) and (b)(1) of the District of Kansas Local Rules. Mr. Cory has not
specifically challenged this ruling on appeal, and we find no abuse of discretion,
see Amundsen v. Jones, 533 F.3d 1192, 1197 (10th Cir. 2008) (“We review a district
court’s application of its local rules for an abuse of discretion.”).
                                           2
concerning whether he should pursue a criminal investigation in a case he believed

involved identity theft, and that he overheard an inappropriate conversation between

Chief Martley and Lieutenant Pierce concerning whether and how officers should

respond to an emergency call involving a child’s asthma attack. During his

deposition testimony, Mr. Cory admitted that in reporting these incidents or

perceived violations to his command staff, he was doing what was required of him

under his Standard Operating Procedure; in making the reports, he was doing his job;

and that reporting such violations was part of his job as a Basehor Police Officer.

See Aplt. App. at 52.

      On June 30, 2010, Mr. Cory had a meeting in Chief Martley’s office with

Chief Martley and Lieutenant Pierce to discuss an allegation that Mr. Cory had

improperly used city resources. A confrontation ensued, during which Mr. Cory and

Lieutenant Pierce both reached to shut the office door. Lieutenant Pierce’s hand

knocked Mr. Cory’s hand out of the way, and Mr. Cory backed up to the wall.

Lieutenant Pierce brought his finger up close to Mr. Cory’s face and thumped him

twice on the chest. Mr. Cory was not hurt or offended by these actions, but he was

frightened by them. The next day, Lieutenant Pierce issued Mr. Cory a letter of

reprimand, stating that he had violated a section of the Code of Conduct requiring

courteous and respectful behavior toward superiors.

      On July 9, 2010, Chief Martley drove Mr. Cory around Basehor and they

discussed all of Mr. Cory’s reports and concerns. Mr. Cory was carrying a voice

recorder in his shirt pocket to record their conversation. Although he asserts that the

                                           3
recorder was in plain view, he did not tell Chief Martley that he was recording their

conversation or seek his permission to do so. After realizing that Mr. Cory had

recorded their conversation without his consent, Chief Martley suspended him

indefinitely.

       While on suspension, Mr. Cory attempted to file a criminal complaint against

Lieutenant Pierce with the Basehor Police Department relative to the June 30

incident, but Lieutenant Pierce escorted him off the police department premises.

Mr. Cory also filed a report with the Leavenworth County Sheriff’s Department

alleging that Lieutenant Pierce had assaulted him, but the Sheriff’s Department

elected not to pursue the matter.

       On July 15, 2010, the City of Basehor terminated Mr. Cory’s employment.

Chief Martley later explained that he had never caught any other officer in the

department recording their private conversations; that Mr. Cory’s “incessant

complaining about the Department policies, his coworkers and his supervisors

disrupted the efficient operation of the Department”; and that his employment was

terminated “due to his inability to get along with his coworkers and because he lost

the trust of his command staff.” Aplt. App. at 147.

                                    DISCUSSION

       1. Review Standards

       “We review the district court’s grant of summary judgment de novo.” Seifert

v. Unified Gov’t of Wyandotte Cty./Kan. City, 779 F.3d 1141, 1150 (10th Cir. 2015).

Summary judgment is appropriate “if the movant shows that there is no genuine

                                           4
dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “Under this standard, we view the evidence and draw

reasonable inferences in the light most favorable to the nonmovant.” Seifert,

779 F.3d at 1150 (internal quotation marks omitted).

      2. First Amendment Rights of Public Employees

      The Supreme Court has explained that “citizens do not surrender their First

Amendment rights by accepting public employment,” Lane v. Franks, 134 S. Ct.

2369, 2374 (2014), but public employees do “not enjoy the same scope of First

Amendment rights as a private citizen,” Rock v. Levinski, 791 F.3d 1215, 1219

(10th Cir. 2015). “Because government employers, like private employers, need a

significant degree of control over their employees’ words and actions, not every

restriction on a public employee’s speech amounts to a deprivation of First

Amendment rights.” Seifert, 779 F.3d at 1151 (citation, alteration, and internal

quotation marks omitted). “The First Amendment protection of a public employee’s

speech depends on a careful balance between the interests of the employee, as a

citizen, in commenting upon matters of public concern and the interest of the State,

as an employer, in promoting the efficiency of the public services it performs through

its employees.” Id. (alteration and internal quotation marks omitted).

      “The familiar Garcetti/Pickering analysis governs First Amendment retaliation

claims.” Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1367 (10th Cir. 2015)

(internal quotation marks omitted). It consists of five elements:



                                           5
      (1) whether the speech was made pursuant to an employee’s official duties;
      (2) whether the speech was on a matter of public concern; (3) whether the
      government’s interests, as employer, in promoting the efficiency of the
      public service are sufficient to outweigh the plaintiff’s free speech interests;
      (4) whether the protected speech was a motivating factor in the adverse
      employment action; and (5) whether the defendant would have reached the
      same employment decision in the absence of the protected conduct.
Id. (internal quotation marks omitted). “The first three elements are typically

questions of law (though they can turn on disputed issues of fact), while the last two

are typically questions of fact.” Seifert, 779 F.3d at 1151.

      The issue here we must resolve involves the first element. In Garcetti v.

Ceballos, 547 U.S. 410, 421 (2006), the Supreme Court held that “when public

employees make statements pursuant to their official duties, the employees are not

speaking as citizens for First Amendment purposes, and the Constitution does not

insulate their communications from employer discipline.” The district court reasoned

that when Mr. Cory made his complaints, “it is undisputed that [he] was not speaking

as a citizen but as a City of Basehor employee, and his speech was not entitled to

First Amendment protection.” Aplt. App. at 330. It further determined that the lack

of a constitutional violation meant that the individual defendants were entitled to

qualified immunity concerning this claim. Id. at 336.

      3. Mr. Cory’s Arguments

      In his summary-judgment response, Mr. Cory identified his protected speech

as his complaints about violations of “serious safety policies and/or practices within

the department that not only affected employees, but had threatened the safety of the

public at large.” Aplt. App. at 185. He asserted that he had been fired for reporting

                                             6
“several incidents of serious health and safety violations perpetrated by the Basehor

City Police Department.” Id. at 194. But he failed to dispute the defendants’

contention that he was doing his job when he made these reports.2 He now argues

that the district court should not have relied upon uncontroverted facts to reach its




      2
         In his Rule 59(e) motion, Mr. Cory belatedly attempted to dispute the
statement of facts contained in the defendants’ summary-judgment motion and to
present additional evidence in support of his claims, including evidence that
purportedly showed that the reports he made were not part of his job duties. He also
modified his assertions concerning his protected speech. He stated that the “most
significant report” he made did not involve his reporting of departmental health and
safety violations, but was “the report made against Lieutenant Pierce for his physical
assault against [Mr. Cory].” See Aplt. App. at 352. He argued that he made this
report as a private citizen, and that it was not part of his job duties. Id. at 352-53.

       “The purpose of a Rule 59(e) motion is to correct manifest errors of law or to
present newly discovered evidence.” Monge v. RG Petro–Machinery (Group)
Co. Ltd., 701 F.3d 598, 611 (10th Cir. 2012) (brackets and internal quotation marks
omitted). “Grounds for granting a Rule 59(e) motion include (1) an intervening
change in the controlling law, (2) new evidence previously unavailable, and (3) the
need to correct clear error or prevent manifest injustice.” Id. (internal quotation
marks omitted). “To support a Rule 59(e) motion with additional evidence . . . the
moving party must show (1) that the evidence is newly discovered, or (2) if the
evidence was available at the time summary judgment was granted, that counsel
made a diligent yet unsuccessful attempt to discover the evidence.” Id. (internal
quotation marks omitted).

       The district court denied Mr. Cory’s Rule 59(e) motion, reasoning that the
additional evidence he presented was not newly discovered, and that he failed to
show clear error or manifest injustice in the order granting summary judgment. “We
review the denial of a Rule 59(e) motion to alter or amend a judgment for abuse of
discretion.” Id. at 610 (citation and internal quotation marks omitted). Mr. Cory has
made no effort in his appellate briefing to show that the district court abused its
discretion in denying his Rule 59(e) motion, or that he satisfied the Rule 59(e)
standards. Accordingly, we affirm the denial of his motion.


                                           7
conclusion, because the issue of whether his speech was made pursuant to his official

duties is one of law, not of fact. We find this argument unpersuasive.

      We have recognized that the “official duties” question, although involving an

issue of law, can turn on the resolution of factual issues. See Seifert, 779 F.3d at

1151. That is the case here. As noted, Mr. Cory admitted during his deposition that

he made the reports in question as part of his official job duties. He failed to dispute

that fact in his response to the defendants’ summary-judgment motion. In his

opening brief in this court, he makes conclusory assertions that some of the

statements in question were made outside of his ordinary duties as a police officer.

See Aplt. Opening Br. at 11-12. In light of the defendants’ summary-judgment

showing, however, such assertions are insufficient to demonstrate the existence of a

genuine issue of material fact or to show that the defendants were not entitled to

judgment as a matter of law.

      Mr. Cory also argues that the district court failed to properly consider the

Supreme Court’s refinement of Garcetti’s “official duties” rule articulated in Lane

and applied in Seifert. In Lane, the Supreme Court held that the First Amendment

“protects a public employee who provided truthful sworn testimony, compelled by

subpoena, outside the course of his ordinary job responsibilities.” Lane, 134 S. Ct. at

2374-75. This was true “even when the testimony relates to . . . public employment

or concerns information learned during that employment,” id. at 2378, because under

Garcetti, “the mere fact that a citizen’s speech concerns information acquired by

virtue of his public employment does not transform that speech into employee—

                                            8
rather than citizen—speech,” id. at 2379. Rather, the issue is “whether the speech at

issue is itself within the scope of an employee’s duties, not whether it merely

concerns those duties.” Id.; see also Seifert, 779 F.3d at 1152 (holding that reserve

sheriff’s deputy’s “testimony [in civil rights action] was protected speech,” because

“[i]t concerned his work but was not part of it.”).

      Lane and Seifert do not offer Mr. Cory any help, however. The undisputed

summary-judgment evidence in this case was that Mr. Cory’s reports did not merely

“concern” his duties, but were made “within the scope” of his duties as a police

officer. See Aplt. App. at 52. Moreover, he presents no facts of record sufficient to

create a genuine issue concerning his assertion that his reports were made “outside

the course of his ordinary job responsibilities,” Lane, 134 S. Ct. at 2374-75

(emphasis added). The district court properly granted summary judgment in favor of

the defendants on his First Amendment retaliation claim.

                                    CONCLUSION

      The district court’s judgment is affirmed.


                                            Entered for the Court


                                            Jerome A. Holmes
                                            Circuit Judge




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