Dixon v. Kirkpatrick - 553 F.3d 1294 (10th Cir. 2009)

Rule:

The test for determining whether a public employee was denied her constitutional rights by being terminated for speaking on matters of public concern is the Pickering test, now modified by the Supreme Court's decision in Garcetti v. Ceballos. The test comprises five elements, called prongs: (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. The first three prongs are said to be issues of law to be decided by a court; the last two are factual issues to be decided by the factfinder.

Facts:

Appellant Rajeanna Dixon, an investigative assistant for the Oklahoma Board of Veterinary and Medical Examiners ("OBVME"), lost her job partly because she discussed OBVME's investigation of a dogfighting ring with a member of the veterinarian trade association. Appellant brought a § 1983 action against OBVME and her supervisor, appellee, Cathy Kirkpatrick, alleging that she had been fired in violation of her constitutional right to free speech. Appellee and OBVME moved for summary judgment; appellee claimed she was entitled to qualified immunity. The district court denied their motion, and appellee, individually, appealed the denial of qualified immunity.

Issue:

Did the termination violate the appellant employee’s First Amendment rights, thereby not entitling the appellee of qualified immunity? 

Answer:

No.

Conclusion:

On appeal, the court reversed the district court's ruling, finding that the agency was within its rights to discipline the employee, who had access to confidential materials, for discussing the investigation with an outside party, and that the termination was necessary to prevent the disruption of official functions and to insure effective performance by the employee. In particular, the court found that the appellee supervisor was entitled to qualified immunity since the termination did not violate the employee's First Amendment rights. The court based its decision on the fact that the agency had legitimate concerns about confidentiality; the breach of confidence involved an ongoing investigation; and the employee was aware that the agency did not want its employees to discuss investigations with outside parties. While the disclosures to an interested outside party did not involve criminal misconduct or other serious wrongdoing, they involved the employee's disagreement about the use of agency resources.