Wright v. Kay County Justice Facilities Authority et al, No. 5:2019cv01013 - Document 68 (W.D. Okla. 2021)

Court Description: ORDER granting 59 Defendant Kay County Justice Facilities Authority's Motion for Summary Judgment and granting 60 Defendant Don Jones Motion for Summary Judgment. Signed by Honorable Robin J. Cauthron on 01/21/2021. (wh)

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73 F.3d 1323, 1327 (10th Cir. 2007). Fourth, was the speech a substantial or motivating factor in the employment decision. Brammer-Hoelter, 492 F.3d at 1203. Finally, if the speech was a factor, can the employer show the same decision would have been made absent the speech. Id. “The first three steps are to be resolved by the district court, while the last two are ordinarily for the trier of fact.” Id. Here, Plaintiff’s claims fail at the first step. In evaluating the nature of the speech, the Court must determine whether the speech was made within the scope of Plaintiff’s 1 Garcetti v. Ceballos, 547 U.S. 410 (2006); Pickering v. Bd. of Education, 391 U.S. 563 (1968). 3 Case 5:19-cv-01013-C Document 68 Filed 01/21/21 Page 4 of 6 employment duties. If the speech is consistent with the type of activities the employee was paid to do, it is made within the scope of employment. Green v. Bd. of Cnty. Comm’rs, 472 F.3d 794, 801 (10th Cir. 2007). The undisputed facts establish that Plaintiff’s speech occurred within the course of her official duties. As noted above, Plaintiff was employed as a compliance officer. In that role, Plaintiff was responsible for ensuring KCDC was in compliance with various policies and procedures, accreditation standards, and other laws. Plaintiff was to report any deficiencies or violations. Plaintiff alleges she was terminated for reporting inmate abuse to the Oklahoma State Bureau of Investigation (“OSBI”). Defendants 2 argue that Plaintiff’s report to the OSBI was made pursuant to her duties and thus was made within the scope of her employment. In support, Defendants point to one of Defendant KCDC’s policies which required reporting of any criminal act occurring within KCDC. Plaintiff argues this policy required her to report to Defendant Jones who would then make any outside reporting necessary. Plaintiff argues that because she made the report directly to the OSBI, she acted outside her employment and as an ordinary citizen. In support, Plaintiff cites Thomas v. City of Blanchard, 548 F.3d 1317, 1323 (10th Cir. 2008). According to Plaintiff, Thomas makes clear that just because speech was made at work and about work does not establish that it was made within the scope of the employee’s official duties. Plaintiff’s analysis is correct. However, it fails to consider the remainder of the Tenth Circuit’s opinion in Thomas. The Circuit noted that it has taken a 2 Both Defendants challenge Plaintiff’s First Amendment claim on the same grounds. Accordingly, the Court will refer to Defendants when addressing this issue. 4 Case 5:19-cv-01013-C Document 68 Filed 01/21/21 Page 5 of 6 broad view when examining whether speech was pursuant to official duties. Id. at 1324. The focus must be on whether the speech stemmed from and was the type of activity for which the employee was paid. Id. The Circuit further noted the ultimate question is whether the employee speaks as a citizen or instead as a government employee. Id. The Tenth Circuit has found speech not to be protected even where the employee goes outside the normal chain of command as long as the speech was of the type of activity for which the employee was paid. Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741, 747 (10th Cir. 2010). Here, Plaintiff was paid to report violations of the type she reported to the OSBI. That she elected to go outside the chain of command and report to the OSBI rather than Defendant Jones, does not alter the fact that her speech was made within the scope of her duties. Thus, her speech is not protected by the First Amendment and Defendants are entitled to judgment on this claim. As noted above, Plaintiff has abandoned all other claims. Thus, Defendants are entitled to judgment on them. 3 Because Plaintiff cannot establish a constitutional violation, it is unnecessary to address Defendant Jones’ claim of qualified immunity. CONCLUSION For the reasons set forth herein, Defendant Kay County Justice Facilities Authority’s Motion for Summary Judgment (Dkt. No. 59) and Defendant Don Jones, in 3 Plaintiff states she is withdrawing her other claims. However, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), Plaintiff cannot voluntarily dismiss her claims at this stage. Thus, the Court finds entry of judgment in Defendants’ favor is appropriate. 5 Case 5:19-cv-01013-C Document 68 Filed 01/21/21 Page 6 of 6 His Individual Capacity and in His Official Capacity as Director of the Kay County Justice Facilities’ Motion for Summary Judgment (Dkt. No. 60) are GRANTED. A separate judgment will issue. IT IS SO ORDERED this 21st day of January 2021. 6

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