                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  December 17, 2008
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT




    DEBRA BENTON,

                Plaintiff-Appellant,

    v.                                                    No. 08-1089
                                              (D.C. No. 1:06-cv-1406-EWN-MEH)
    ADAMS COUNTY BOARD OF                                  (D. Colo.)
    COUNTY COMMISSIONERS;
    JOHN LEFEBVER,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.



         Plaintiff-appellant Debra Benton appeals the district court’s grant of

summary judgment to defendants-appellees on her claim that defendants-appellees

violated her constitutional right to free speech under the First Amendment.

Ms. Benton, a former employee of the Adams County Treasurer’s Office, argued


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
that she was fired by the Treasurer, defendant John LeFebvre, on July 22, 2004, in

retaliation for exercising her right to free speech. Mr. LeFebvre claimed that

Ms. Benton was not terminated because of her speech but because her position

was unnecessary and presented evidence that after Ms. Benton’s termination,

another employee had simply taken on Ms. Benton’s duties in addition to her

own. Our jurisdiction is under 28 U.S.C. § 1291. Because we agree with the

district court that no reasonable jury could have found the required causal link

between her speech and her termination, we affirm.

                                          I.

              This court reviews a district court’s decision to grant summary
      judgment de novo, using the same legal standard applicable in the
      district court. Summary judgment is appropriate only if 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 making this determination, this court
      views all evidence and draws all reasonable inferences in favor of the
      nonmoving party. Mere allegations, however, are insufficient to
      survive a motion for summary judgment. In cases involving the First
      Amendment, 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.

Deschenie v. Bd. of Educ. of Cent. Consol. Sch. Dist. No. 22, 473 F.3d 1271, 1276

(10th Cir. 2007) (quotations and citations omitted).




                                         -2-
                                          II.

      Ms. Benton alleged that she was terminated by Mr. LeFebvre on July 22,

2004, for exercising her right to free speech on three occasions, (1) when she

testified to a grand jury in August 2003 in support of allegations of misconduct

against Mr. LeFebvre’s predecessor in office; (2) in June 2004 when she spoke to

a man she described as her “liaison to the press” about hearing another

Treasurer’s Office employee threatening to shoot a tax payer; and (3) when, in

February of 2004, she refused a request by Mr. LeFebvre that she testify before

the Colorado General Assembly regarding a bill that he supported.

      In determining whether a public employer impermissibly retaliated
      against a public employee in violation of her First Amendment
      rights, this court applies the four-part test derived from Pickering [v.
      Bd. of Educ., 391 U.S. 563 (1968)] and Connick v. Myers, 461 U.S.
      138 (1983).

             First, this court must determine whether the employee’s speech
      involves a matter of public concern. Second, if this threshold
      requirement is satisfied, this court then balances the employee’s
      interest in commenting upon matters of public concern against the
      interest of the State, as an employer, in promoting the efficiency of
      the public services it performs through its employees. Third, if the
      employee’s interest outweighs that of the government, the employee
      then must show that the speech was a substantial factor or a
      motivating factor in the detrimental employment decision. Fourth, if
      the employee shows the protected speech was a substantial factor, the
      burden shifts to the employer to show it would have taken the same
      action against the employee even in the absence of the protected
      speech. The first two steps of this analysis are questions of law to be
      resolved by the court, while the third and fourth steps are questions
      of fact for the jury.

Id. (quotations and citations omitted).

                                          -3-
      The district court granted summary judgment as to the first two claimed

incidents of protected speech on the grounds that (1) the evidence clearly showed

that Mr. LeFebvre supported her grand jury testimony against Mr. LeFebvre’s

predecessor, who was a political opponent of his and not an ally, and (2) there

was no evidence that Mr. LeFebvre had any knowledge that Ms. Benton had

spoken to anyone regarding the alleged threat to a tax payer. Ms. Benton does not

appeal these determinations.

      Instead, she argues that the district court erred in regard to its ruling on her

claim that her firing was in retaliation for her refusal to speak to the General

Assembly. The district court noted that it appeared that Ms. Benton refused to

testify sometime in February 2004, approximately five months before her position

was terminated. Ms. Benton does not dispute this finding on appeal. The court

held that with that five-month lapse, the termination was not so close in time to

her refusal to testify that a reasonable fact-finder could infer that the failure to

testify played a substantial part in the decision to fire her without other evidence.

The court recognized that Ms. Benton had also testified that Mr. LeFebvre had

been hostile to her after her refusal to testify but noted that the only specific

example Ms. Benton had given to evidence this hostility was the fact that she had

only received a four-percent cost-of-living pay increase in April 2004 as opposed

to a six-percent merit pay increase in 2003. The court held that, like the




                                           -4-
termination, it was only speculation that her failure to testify had anything to do

with her not receiving a “merit increase” in 2004.

      Finally, the district court noted that Ms. Benton had presented some

evidence that a year before she was fired on the ground that her position was

being eliminated, Mr. LeFebvre had fired three employees who had been

supporters of his predecessor for the same reason. Ms. Benton testified that she

was personally aware that the firings were actually political in nature. The

district court held that “even assuming plaintiff has presented evidence that

LeFebvre had a plan to eliminate positions of politically disloyal employees, there

is simply no evidence either that plaintiff fell into that category or that LeFebvre

had any reason to believe that was the case.” Aplt. App. at 591 (quotation

omitted).

                                         III.

      On appeal, Ms. Benton makes three arguments. First, she argues that the

district court ignored other evidence of hostility from which a reasonable

factfinder could have inferred causation. Second, she argues that the district

court ignored other evidence showing the pretextual nature of Mr. LeFebvre’s

proffered non-discriminatory reason for her termination. Finally, she argues that

the district court erred in granting summary judgment on arguments that were

never made.




                                          -5-
                                          A.

      In her first point on appeal, Ms. Benton argues that the district court erred

in determining that she did not produce enough evidence at step three of her

prima facie case to survive summary judgment.

      What constitutes a substantial motivating factor [at step three] evades
      precise definition. An employee need not prove his speech was the
      sole reason for defendants’ action. Nor is the employee required to
      show “but-for” causation; that is, to demonstrate but-for the
      employee’s speech the subsequent employment action would not
      have occurred. Rather, the employee must show the protected speech
      played a substantial part in the employer’s decision to adversely
      alter the employee’s conditions of employment.

             To withstand summary judgment at step three, therefore, an
      employee must produce evidence linking the employer’s action to the
      employee’s speech. Speculation or hunches amidst rumor and
      innuendo will not suffice. Nor can a plaintiff sustain his burden at
      step three simply by showing that the elimination of the protected
      activity may have been welcomed by the defendants.

Maestas v. Segura, 416 F.3d 1182, 1188-89 (10th Cir. 2005) (quotations,

citations, alterations, and footnotes omitted). As to what evidence would suffice

in regard to a plaintiff’s burden at step three, we held in Maestas that

      An employer’s knowledge of the protected speech, together with
      close temporal proximity between the speech and challenged action,
      may be sufficiently probative of causation to withstand summary
      judgment. Other evidence of causation may include evidence the
      employer expressed opposition to the employee’s speech, or evidence
      the speech implicated the employer in serious misconduct or
      wrongdoing. On the other hand, evidence such as a long delay
      between the employee’s speech and challenged conduct, or evidence
      of intervening events, tend to undermine any inference of retaliatory
      motive and weaken the causal link.

Id. at 1189.

                                          -6-
      Here, the record shows that Mr. LeFebvre asked Ms. Benton to testify

before the Colorado General Assembly regarding a bill he supported that, among

other things, would have made it illegal for Adams County to operate oil wells

seized by the county. Mr. LeFebvre wanted Ms. Benton to testify at least in part

because her husband had been killed in an oil accident. She testified that she felt

pressured to testify, that he had given her a prepared statement, but that she felt

the subject was private so she refused to testify. 1 Even without Ms. Benton’s

testimony, the bill was passed.

      The district court found that Ms. Benton informed Mr. LeFebvre that she

would not testify sometime in February 2004, approximately five months before

she was fired. The district court held that considering the five-month lapse,

Ms. Benton had not shown the close temporal proximity necessary to survive

summary judgment without further evidence. See Maestas, 416 F.3d at 1189.

The court found that Ms. Benton had alleged that Mr. LeFebvre had been hostile

1
        Defendants presented the hand-written notes that Mr. LeFebvre prepared
for Ms. Benton to read. It appears that one of the arguments presented by
proponents of the bill was to be that counties could potentially be liable for
injuries to workers operating the wells. The notes, which are seven sentences
long, have Ms. Benton testifying to her husband’s death “servicing oil & gas
wells,” asking the Assembly to consider the possible liability to a county if her
husband’s death had occurred while the county owned the well, and urging it to
stop allowing counties to continue to run businesses they had seized due to
delinquent taxes. Aplt. App. at 290-91. Ms. Benton testified that she didn’t want
to give the testimony because the matter was private, her husband was killed
doing oil well exploration and not servicing, and he was privately insured so even
if he had been working on a county-owned well there would have been no county
liability.

                                          -7-
to her following her refusal to testify but that the only evidence of hostility she

had presented was the fact that she had received only a four-percent cost-of-living

raise in April 2004, instead of the six-percent merit raise she had received in

2003. While this might show that Mr. LeFebvre thought less of her performance

for that year than the year before, the court found that it was pure speculation that

it had anything to do with her refusal to testify two months before. For reasons

explained infra, we agree with that conclusion.

      On appeal, Ms. Benton argues that the district court ignored other evidence

of hostility that she had presented and that the denial of a merit increase was

actually part of a pattern of retaliation that began right after she refused to testify.

Ms. Benton cites to our opinion in Marx v. Schnuck Markets, Inc., 76 F.3d 324,

329 (10th Cir. 1996), to support her claim. In that Fair Labor Standards Act

retaliation case, the employee presented evidence that the month after he asserted

his statutory right to proper overtime pay by filing a class-action lawsuit, his

employer began citing him for performance deficiencies, resulting in a showing in

the record of “numerous handwritten entries detailing plaintiff’s omissions in

stocking and pricing [the employer’s] merchandise” over the next two months.

Id. at 326. Then, a month later, he was demoted and transferred to a different

store based on a complaint by a co-worker that he had harassed her regarding a

survey regarding the over-time pay issue. The employee then filed a

discrimination lawsuit. Discovery revealed numerous instances of prevarication

                                           -8-
on the part of the employee, and the employer then fired him on the basis of these

lies.

        Although we noted “that protected conduct closely followed by adverse

action may justify an inference of retaliatory motive,” and that “we ha[d] rejected

attempts to unduly stretch the ‘close temporal proximity’ required under this

standard,” we held “that the phrase ‘closely followed’ must not be read too

restrictively where the pattern of retaliatory conduct begins soon after the filing

of the FLSA complaint and only culminates later in actual discharge.” Id. at 329.

We therefore determined that summary judgment was not proper in that case.

        Ms. Benton argues that in addition to not getting a merit increase there was

evidence of just such a pattern of retaliatory conduct that was ignored by the

district court. We agree with defendants that Ms. Benton failed to present

sufficient evidence linking her termination with her refusal to speak to the

General Assembly.

        Ms. Benton testified that Mr. LeFebvre “hung up the phone–basically

slammed down the phone” when she informed him that she was not going to

testify. 2 Aplt. App. at 248. She also testified that after she refused to speak

before the Assembly her office environment changed in that Mr. LeFebvre would

2
       What Ms. Benton meant by this testimony is a bit unclear in that she later
testified that Mr. LeFebvre was on his cell phone in his car driving to pick her up
when she informed him that she was not going to testify. When questioned
further she testified that she heard a “bang,” but also that he seemed “very short”
with her. Aplt. App. at 251.

                                          -9-
not say good morning to her when he came in the office and that, when she had

suggestions about how to change the “wrongdoing” in the office, he would take

notes but would not act on those suggestions. But this conduct does not rise to

the level of conduct we considered in Marx. If Mr. LeFebvre was so angry about

her refusal to give that testimony that he no longer would say hello to her in the

morning, why give her any raise at all two months later? Ms. Benton did not

present evidence showing that her performance had not declined, nor did she

present evidence that other employees received merit raises for that year.

Nor did Ms. Benton’s evidence tend to show why Mr. LeFebvre would wait

five months to get rid of her position if he harbored such hostility toward her.

As to Ms. LeFebvre’s alleged refusal to act on her suggestions to change the

“wrongdoing” in the office, Ms. Benson’s evidentiary presentation was similarly

deficient. For example, she did not show that Mr. LeFebvre previously had acted

on her suggestions, or that he treated her suggestions differently than other

employees.

      Also, the content of the remarks Mr. LeFebvre prepared for Ms. Benton

further undercuts any reasonable inference of retaliation. Her testimony was

clearly intended to put a human face on the argument of the bill’s proponents that

counties open themselves up to potential liability when operating seized

businesses. Ms. Benton refused to provide this testimony, in part, because it did

not accurately describe the particular factual situation surrounding her husband’s

                                         -10-
death. But it seems hard to believe that the planned testimony, which would have

taken less than a minute to deliver, or Ms. Benton’s refusal to deliver that

testimony, would have had a significant impact on the General Assembly’s

deliberations or been an impetus for retaliation, especially since the bill was

passed anyway.

      In short, this evidence is simply too speculative to allow a reasonable jury

to find that there was a five-month pattern of retaliatory conduct and that her

failure to testify was a substantial motivating factor in her position being

terminated.

                                          B.

      In her second point, Ms. Benton argues, citing to our opinion in Mason v.

Oklahoma Turnpike Authority, 115 F.3d 1442, 1455 (10th Cir. 1997), that the

district court erred in granting summary judgment because she presented

sufficient evidence for a reasonable jury to have found that Mr. LeFebvre’s

asserted reason for firing her was pretextual and that this finding alone could

serve as sufficient reason for a reasonable jury to have found that her refusal to

speak to the General Assembly was a substantial factor or a motivating factor in

her termination. In other words, Ms. Benton argues that she can satisfy the third

step of her prima facie First Amendment retaliation case solely by showing that a

proffered non-retaliatory reason for her termination was pretextual.




                                         -11-
      First, Ms. Benton has misread our ruling in Mason. In that case, we noted

that Mr. Mason had presented sufficient evidence that he had been fired for his

political views or associations to warrant submission of his § 1983 claim to the

jury. In other words he had made his prima facie case. We held that “[o]nce

Mason presented such evidence, a finding of pretext is simply inferential evidence

of discriminatory animus that may aid the jury in answering the ultimate question:

Did political patronage . . . motivate the employment decision?” Id. Here,

Ms. Benton is arguing that a pretext showing can help make her prima facie case.

      Further, it is undisputed that after her termination, Ms. Benton’s position

was eliminated and her duties were taken on by another employee. The

termination letter stated that her position was “no longer necessary to this

organization.” See Aplt. App. at 141. When questioned about his decision,

Mr. LeFebvre testified that Ms. Benton’s position “was taking less than 2 hours

worth of time per day to complete” and was thereafter combined with another

employee’s position that also did not entail a full day’s worth of work. Id. at 138.

      Ms. Benton countered the assertion that her job took ten hours a week to

complete by filing an affidavit that it took a full forty hours a week, noting that

her termination letter did not specify that her job only took ten hours a week to

complete, and noting that she received a “merit raise” for the first year

Mr. LeFebvre was Treasurer. But while these arguments contradict

Mr. LeFebvre’s assertion as to how much time her job took, they do not

                                         -12-
contradict the evidence that her position was unnecessary in that it was

subsequently combined with another employee’s and not refilled.

                                          C.

      Ms. Benton’s final point of error argues that the district court erred because

its grant of summary judgment “was based on arguments that Defendants never

made.” Aplt. Opening Br. at 13. Generally, a district court cannot grant

summary judgment to a defendant on an issue not presented in the defendant’s

motion for summary judgment without notice to the plaintiff. Graham v. City of

Okla. City, 859 F.2d 142, 145 (10th Cir. 1988). But, “[i]f a losing party was not

prejudiced by the lack of notice, we will not reverse simply because the grant of

summary judgment came sua sponte.” Ward v. Utah, 398 F.3d 1239, 1245-46

(10th Cir. 2005). In her brief, Ms. Benton claims that “[t]he district court’s grant

of summary judgment [was] based on factual arguments that Defendants did not

make, and which Plaintiff had no notice were at issue.” Aplt. Opening Br. at 13.

      If Ms. Benton’s argument is, generally, that defendants raised no argument

as to the third element in her prima facie case: i.e., her burden to prove “that the

speech was a substantial factor or a motivating factor in the detrimental

employment decision,” Deschenie, 473 F.3d at 1276 (quotation omitted), this is

clearly not true. While, defendants failed to cite to relevant case law regarding

this factor in their summary judgment brief, much of their argument was centered

around their contention that Ms. Benton could not show that she was fired in

                                         -13-
retaliation for exercising her right to free speech, rather than because her position

was unnecessary.

      If her argument is, more specifically, that defendants did not address (1) the

sub-issue of proving the third element of her prima facie case through the use of

circumstantial evidence of temporal proximity, or (2) factual evidence of her not

receiving a “merit increase” in 2004, she has not shown prejudice. Her response

brief discussed both topics. See Aplt. App. at 151 (arguing that “[a]s a matter of

law, a court can infer retaliation against . . . an employee when adverse

employment action occurs within up to eight, or even eleven, months after an

employee engages in protected activities”); id. at 153 (arguing that

“[Mr. LeFebvre] was the person who terminated her only one month after she

spoke out about wrongdoing in his office. He was the one who did not give her a

merit raise in 2004 after she refused to testify before the General Assembly”

(citation omitted)).

                                         IV.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court


                                                     Jerome A. Holmes
                                                     Circuit Judge




                                         -14-
