Dixon v. OK Bd. of Vet. Med. Examiners, et al

Filing 920090108

Opinion

U n i t e d States Court of Appeals T e n t h Circuit

FILED

J a n u a r y 8, 2009
PUBLISH U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT
E l i s a b e t h A. Shumaker C l e r k of Court

R A J E A N N A DIXON, Plaintiff-Appellee, v. C A T H Y KIRKPATRICK, in her i n d i v i d u a l capacity, Defendant-Appellant, O K L A H O M A BOARD OF V E T E R I N A R Y MEDICAL EXAMINERS, Defendant. N o . 07-6201

A P P E A L FROM THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF OKLAHOMA ( D . C . NO. 06-CV-1003-M) J a mi J. Fenner, Lester, Loving & Davies, P.C., Edmond, Oklahoma, for PlaintiffAppellee. M . Daniel Weitman, Assistant Attorney General (Kindanne C. Jones, with him on t h e brief), Oklahoma City, Oklahoma, for Defendant-Appellant. B e f o r e MURPHY, McKAY and McCONNELL, Circuit Judges. M c C O N N E L L , Circuit Judge.

R a j e a n n a Dixon, an investigative assistant for the Oklahoma Board of V e t e r i n a r y and Medical Examiners ("OBVME"), lost her job partly because she d i s c u s s e d OBVME's investigation of a dogfighting ring with a member of the v e t e r i n a r i a n trade association. She brought a § 1983 action against OBVME and h e r supervisor, Cathy Kirkpatrick, alleging that she had been fired in violation of h e r constitutional right to free speech. Ms. Kirkpatrick and OBVME moved for s u mma r y judgment; Ms. Kirkpatrick claimed she was entitled to qualified i mmu n i t y . The district court denied their motion, and Ms. Kirkpatrick, i n d i v i d u a l l y , now appeals the denial of qualified immunity. We reverse the d i s t r i c t court on the ground that an investigative agency is within its rights as an e mp l o y e r to discipline an employee with access to confidential materials for d i s c u s s i n g details of an agency investigation with an outside party. I. BACKGROUND T h e OBVME is the agency charged under Oklahoma law with regulating t h e practice of veterinary medicine in the State. 59 Okla. Stat. § 698.3. Defendant-Appellant Cathy Kirkpatrick is its Executive Director. During the r e l e v a n t period, OBVME had four employees, one of whom was PlaintiffA p p e l l e e Raejeanna Dixon. As an "investigative assistant," Ms. Dixon's job was t o assist the Board's investigator, Dale Fullerton, with "clerical and inspection d u t i e s " by typing reports, documents, and transcripts for investigations. Some of
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h e r job duties entailed access to confidential materials, including information c o n c e r n i n g ongoing investigations. Although there is no evidence of a written c o n f i d e n t i a l i t y policy applicable to Ms. Dixon's position, 1 both Ms. Dixon and h e r employers later testified that Ms. Dixon was not supposed to divulge i n f o r ma t i o n about ongoing investigations to outside parties. The following is an e x c e r p t from Ms. Dixon's deposition: Q. Do you believe that the board did not want its employees to disclose i n f o r ma t i o n to anyone outside of the office regarding an investigation? A . Yes. Q . Okay. Was it common knowledge that employees were not to discuss i n f o r ma t i o n regarding investigations conducted by board employees with t h o s e outside the office? A . Well, they were discussed with our AG representative [i.e., the a g e n c y ' s attorney]. ***** Q. What about outside of [the AG representative], do you think the board w a n t e d its employees to discuss investigation information with anyone else o u t s i d e the agency?

The appellant points to a statutory policy prohibiting OBVME employees f r o m disclosing information about ongoing investigations, stating that it was a d o p t e d by the OBVME board in January, 2004. Appellant's Br. 3. The record, h o w e v e r , indicates that in January 2004 the Board voted to recommend this s t a t u t o r y change to the legislature; the change was not enacted until November, 2 0 0 4 . It was therefore not applicable at the time of Ms. Dixon's actions or t e r mi n a t i o n . In any event, this policy was addressed to the agency as a whole, a n d was designed to change the agency's practices regarding inquiries about v e t e r i n a r i a n s who were undergoing investigation.
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[ O b j e c t i o n to the form of the question.] A . Yes. Q . You said yes. You believe that the board wanted you to discuss i n v e s t i g a t i o n information with people outside the agency? A. No. R. 81­82. The chairman of OBVME stated that an employee in Ms. Dixon's p o s i t i o n "should [not] be talking . . . about investigations that are going on," and t h a t "any conversation about investigations is too much." R. 409. Ms. K i r k p a t r i c k similarly testified that "[j]ust talking about a case outside of the o f f i c e where we know we're not supposed to be talking about cases that are c o n f i d e n t i a l , you don't do that." R. 340. See also id. at 335 (Kirkpatrick dep.) ( s t a t i n g that if Ms. Dixon received an inquiry about an investigation she should r e f e r the questioner to her as Executive Director); id. at 342 (stating that the b o a r d had a policy applicable to Ms. Dixon's position "not to speak about i n v e s t i g a t i o n s outside the office" even if there had already been reports in the me d i a ) ; id. at 380 (testimony of another board member that it is "prudent" for e mp l o y e e s to refrain from discussing "vet board matters" even if they are not " c o n f i d e n t i a l , " but that this is not a "requirement"). In February 2003, OBVME began an investigation into an illegal d o g f i g h t i n g ring. Ms. Dixon objected to the use of OBVME funds on the i n v e s t i g a t i o n because it was not, she believed, OBVME's mission "to be out there

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b u s t i n g John Doe for fighting dogs or selling dope or anything else." Ms. Dixon h a d expressed to her supervisor, Cathy Kirkpatrick, that OBVME was getting " i n v o l v e d in things that were not a part of what the veterinary board was designed t o do." She also had complained to the investigator who was working on the case, D a l e Fullerton. In May 2004, the dogfighting investigation ended in a bust. The bust was r e p o r t e d in a prominent local newspaper over two days. One story stated that d u r i n g the investigation the "Board of Veterinary Medical Examiners was brought i n " to assist the Oklahoma Bureau of Narcotics. "Eventually," the story said, " t w o undercover state narcotics agents and one from the veterinary board i n f i l t r a t e d " the dogfighting "underworld." David Zizzo, Dogfighters Work Hard t o Maintain Secret Community, The Oklahoman, May 24, 2007, at 1A. See also T o n y Thornton, Raids Net Packs of Fighting Dogs, The Oklahoman, May 26, 2 0 0 4 , at 1A ("Investigating agencies included the Oklahoma State Board of V e t e r i n a r y Medicine and the Oklahoma and Hughes County Sheriff's D e p a r t me n t s . " ) . Ms. Kirkpatrick was quoted in the newspaper accounts. The s t o r i e s did not mention the involvement of any veterinarian in the investigation or t h e bust. There was a second bust, later, in July, which was part of the same investigation. I n late May, shortly after the second article appeared in the newspaper, Ms. D i x o n took her pets to her personal veterinarian, Dr. James Stock, to be
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v a c c i n a t e d . Dr. Stock was a member of the "legislative committee" of the O k l a h o ma Veterinary Medical Association, a private trade organization for v e t e r i n a r i a n s . According to Dr. Stock's account of the visit, he "quizzed" Ms. D i x o n about the dogfighting investigation, in particular why OBVME was i n v o l v e d in it if no veterinarians were implicated in the dogfighting ring. R. 271, 2 7 2 (Stock dep.). Ms. Dixon answered: "Well that's kind of what I'd like to k n o w , too." Id. at 272. She added that there were "a lot of things" she wanted to d i s c u s s with Dr. Stock. Dr. Stock suggested that they could meet some other t i me . Id. Dr. Stock stated that Ms. Dixon had "led [him] to believe" that no v e t e r i n a r i a n was involved in the investigation. Id. at 273, 275. Ms. Dixon denies t h a t she said anything misleading, and that, to the contrary, she "made it clear that w h i l e there was a veterinarian against whom a complaint had been made, the i n v e s t i g a t o r had not confined his investigation to the veterinarian or to my k n o w l e d g e , investigated the veterinarian at all." R. 269 (Dixon aff.). Dr. Stock said later that he asked Ms. Dixon about the investigation b e c a u s e he felt that as a member of the legislative committee he could take action i f the "vet board was doing something that [he] felt was contrary to [his] p r o f e s s i o n . " Id. at 276. According to his understanding of the OBVME, "they r e g u l a t e veterinarians, good or bad, and if no veterinarians are involved, then no ma t t e r what's going on, they really shouldn't necessarily be involved" in an i n v e s t i g a t i o n of dogfighting. Id. at 273. There was "no problem whatsoever"
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w i t h such an investigation if a veterinarian was involved, even if ultimately no v e t e r i n a r i a n were found to be guilty. Id. Ms. Dixon and Dr. Stock met again in June, this time at Ms. Dixon's i n s t i g a t i o n . She told Dr. Stock that she believed that the dogfighting i n v e s t i g a t i o n was "outside the scope of the Veterinary Practice Act and Mission S t a t e me n t , " and that funds were being wasted on the investigation. Dr. Stock t e s t i f i e d that in this conversation, as in the first, Ms. Dixon led him to believe that t h e r e was no veterinarian involved in the dogfighting scheme. Id. at 201. Ms. D i x o n also made numerous complaints about the investigator, Mr. Fullerton, i n c l u d i n g that he exceeded the speed limit in state-owned vehicles, carried a s i d e a r m when he went in to talk to veterinarians, and that he had made racist and s e x i s t remarks. She described Mr. Fullerton as "like a little Rambo," and said t h a t he "needed to stick to the business of the veterinary board and not [be] out t h e r e trying to be the great cop of Oklahoma and [a]ffect all things." Id. at 350. She also complained about the way Ms. Kirkpatrick was administering the office. 2 Id. at 201. At this time, Ms. Dixon apparently believed that the dogfighting i n v e s t i g a t i o n was over, but in fact the investigation led to a second bust the f o l l o w i n g month. R. 354 (Dixon dep.).

At one meeting with Dr. Stock, Ms. Dixon apparently showed him d o c u me n t s about a pending investigation against an entity called "ProCon," a d r u g pharmaceutical distributor. R. 273­74.
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M s . Dixon later said that she told these things to Dr. Stock because she " h o p e d that he would go to the legislative committee and explain to them that the i n v e s t i g a t o r was out of control." Id. at 359 (Dixon dep.). She believed that p r o b l e ms of the sort she had discussed would continue as long as the investigator c o n t i n u e d to have police powers. Id. at 203-04. Dr. Stock did get the attention of the Board, or at least of Ms. Kirkpatrick. Ms. Kirkpatrick attended a meeting of the legislative committee of the Oklahoma V e t e r i n a r y Medical Association. Dr. Stock asked her: "Can you tell me why the V e t e r i n a r y Board is involved in the dog fighting investigation?" Id. at 293, 163. ( K i r k p a t r i c k dep.). (According to Dr. Stock, his question was "Are there any ­ a n y vets?" Id. at 204 (Stock dep.)). Ms. Kirkpatrick described his question as " p o i n t e d . " Id. at 163, 293 (Kirkpatrick dep.). Ms. Kirkpatrick answered that " t h e r e was a veterinarian and there's others -- other veterinarians implicated." Id. at 163. Dr. Stock appeared satisfied with her answer. D r . Stock's question gave Ms. Kirkpatrick the "big suspicion" that Ms. D i x o n had "spoken to an individual outside of the office regarding i n v e s t i g a t i o n s . " R. 293, 163. Ms. Kirkpatrick asked Dr. Lee Denny, a v e t e r i n a r i a n who is a member of the OBVME board, to contact Dr. Stock and ask a b o u t his conversations with Ms. Dixon. Dr. Stock confirmed that Ms. Dixon ( w h o m Dr. Stock referred to as "our secretary at the board office") had discussed t h e investigation with him. Id. at 376 (Denny dep.). Dr. Denny relayed this
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a n s w e r to Ms. Kirkpatrick. Id. at 335 (Kirkpatrick dep.). With her suspicions c o n f i r me d that Ms. Dixon was the source of Dr. Stock's misinformation about the i n v e s t i g a t i o n , and after giving Ms. Dixon time off to consider whether to r e c o n s i d e r her attitude toward her work, id. at 339, Ms. Kirkpatrick terminated M s . Dixon on July 14. Ms. Dixon's termination letter apparently did not contain a statement of r e a s o n s for her dismissal. In her appellate brief, Ms. Kirkpatrick says Ms. Dixon w a s fired "for a plethora of reasons related to her work performance and d i s r u p t i o n to the office and its mission." Appellant's Br. 6. Ms. Kirkpatrick does n o t deny that one of those reasons was Ms. Dixon's conversations with Dr. Stock. In her deposition, Ms. Kirkpatrick affirmed that one reason Ms. Dixon was d i s c h a r g e d was "her speaking to Dr. Stock about the dog-fighting investigation." R. 331. Later, in the context of opposing Ms. Dixon's claim for unemployment c o mp e n s a t i o n , OBVME stated that the reasons for the discharge were " i n s u b o r d i n a t i o n and divulging information about an investigation." Id. There is e v i d e n c e that Ms. Kirkpatrick was not aware that Ms. Dixon had divulged any " s p e c i f i c s . . . regarding the dog-fighting investigation that wasn't already in the n e w s p a p e r , " though she suspected that Ms. Dixon had conveyed additional i n f o r ma t i o n about the conduct of the investigation that "undermin[ed] the i n v e s t i g a t o r . " R. 335-36, 340 (Kirkpatrick dep.) Indeed, because Ms. Kirkpatrick w a s apparently unaware of the details of Ms. Dixon's conversation with Dr. Stock
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a t the time of the termination, the termination decision could not have been based o n the disclosure of specific confidential information. M s . Dixon filed suit in state court, alleging that she had been fired "in r e t a l i a t i o n and in response to [her] speaking as a citizen on matters of public c o n c e r n by reporting wrongdoing at OBVME." After extensive discovery, the s t a t e case was dismissed by stipulation of the parties, and Ms. Dixon refiled in f e d e r a l district court. The parties stipulated that they would be bound by the d i s c o v e r y responses provided in the state court action. Ms. Kirkpatrick and O B V M E moved for summary judgment, arguing that Ms. Dixon was not speaking o n a matter of "public concern," but that if she was, OBVME was justified in r e g u l a t i n g her speech. Ms. Kirkpatrick also contended that she was entitled to q u a l i f i e d immunity because the law was not clearly established at the time of Ms. D i x o n ' s termination. The district court denied the motion for summary judgment o n all three issues. II. STANDARD OF REVIEW OF INTERLOCUTORY APPEAL OF D E N I A L OF SUMMARY JUDGMENT IN A Q U A L I F I E D IMMUNITY CASE " T h e denial of a summary judgment motion ordinarily is not an appealable f i n a l order." Bass v. Richards, 308 F.3d 1081, 1086 (10th Cir. 2002). When a p a r t y has been denied qualified immunity, that denial can be appealed prior to a f i n a l judgment only to the extent that the appeal is based on an issue of law. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); see also Shrum v. City of Coweta,
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4 4 9 F.3d 1132, 1137 (10th Cir. 2006) (orders denying qualified immunity before t r i a l are appealable only if they involve "abstract issues of law"). A district c o u r t ' s determination that the record raises a "genuine issue of material fact," p r e c l u d i n g summary judgment in favor of the defendants, is not appealable even i n a qualified immunity case. Johnson v. Jones, 515 U.S. 304, 313 (1995). Thus, i n deciding these issues of law, we "consider only whether the district court erred i n assessing the legal significance of the conduct that the district court deemed s u f f i c i e n t supported for purposes of summary judgment." Kinney v. Weaver, 367 F . 3 d 337, 348 (5th Cir. 2004). Unlike other appeals from summary judgment d e c i s i o n s (which are, perforce, appeals of grants rather than denials), the a p p e l l a t e court in an interlocutory appeal regarding qualified immunity "can s i mp l y take, as given, the facts that the district court assumed when it denied s u mma r y judgment for [a] (purely legal) reason." Johnson, 515 U.S. 319. It is n o t the job of the appellate court to determine whether the record supports the d i s t r i c t court's factual assumptions. Kinney, 367 F.3d at 348. 3 III. APPLYING THE GARCETTI/PICKERING TEST The test for determining whether Ms. Dixon was denied her constitutional r i g h t s by being terminated for speaking on matters of public concern is the P i c k e r i n g test, now modified by the Supreme Court's decision in Garcetti v. The Appellant is therefore incorrect to state that we must "conduct a de n o v o review of the record" to determine whether there were disputed issues of ma t e r i a l fact. Appellant's Reply Br. 2.
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C e b a l l o s , 547 U.S. 410 (2006). See Brammer-Hoelter v. Twin Peaks Charter A c a d e m y , 492 F.3d 1192, 1202 (10th Cir. 2007) (describing what we now call the " ` G a r c e t t i / P i c k e r i n g ' analysis"); see also Pickering v. Bd. of Educ., 391 U.S. 563, 5 6 8 (1968). The test comprises five elements, called "prongs": (1) whether the s p e e c h was made pursuant to an employee's official duties; (2) whether the s p e e c h was on a matter of public concern; (3) whether the government's interests, a s employer, in promoting the efficiency of the public service are sufficient to o u t w e i g h the plaintiff's free speech interests; (4) whether the protected speech w a s a motivating factor in the adverse employment action; and (5) whether the d e f e n d a n t would have reached the same employment decision in the absence of t h e protected conduct. Id. at 1202­03. The first three "prongs" are said to be i s s u e s of law to be decided by the court; the last two are factual issues to be d e c i d e d by the factfinder. Id. at 1203. A. Undisputed Issues T h e first, fourth, and fifth elements of the Garcetti/Pickering test are not c h a l l e n g e d by the appellant. The OBVME and Ms. Kirkpatrick conceded below t h a t "it was not a part of [Ms. Dixon's] duties to opine on the used [sic] of O B V M E funds in investigations or discuss ongoing investigations." The first e l e me n t of the test, which was added by Garcetti, is therefore deemed satisfied f o r purposes of this appeal.

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M s . Kirkpatrick devotes many pages of her appellate brief to summarizing f a c t s in the record regarding Ms. Dixon's allegedly poor work performance. Appellant's Br. 4, 5­6, 19. According to the appellant, as a result of Ms. Dixon's b e l i e f that OBVME should not have become involved in the dogfighting i n v e s t i g a t i o n , Ms. Dixon intentionally performed lower quality work and became u n c o o p e r a t i v e and disruptive. These facts might well justify the plaintiff's t e r mi n a t i o n under the fourth or fifth element in the test, but the defendants did not a r g u e this either in support of their summary judgment motion in district court or i n the legal argument section of their brief in this court. For purposes of this a p p e a l , therefore, we will assume that Ms. Dixon was terminated because of her speech. B. Public Concern T h e r e is some controversy about whether the "matter of public concern" e l e me n t of the test was conceded below. In her Request for Admissions, the p l a i n t i f f asked the defendants to "Admit Plaintiff spoke to Cathy Kirkpatrick and J a me s Stock, D.V.M., on matters of public concern." After objecting to the form o f the request, the defendants responded: "it is admitted, upon information and b e l i e f , that Plaintiff did speak, on occasion, to those persons on matters of `public c o n c e r n . ' " R. 209. In their motion for summary judgment, however, the d e f e n d a n t s denied the admission, noting that they had also stated that the request f o r an admission on this point was "vague, ambiguous, susceptible to
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i n t e r p r e t a t i o n and undefined in terms of scope, date or subject matter." They a d d e d : "To the extent it holds any significance, Defendant OBVME supplements t h e response to `Denied.'" Both Oklahoma and federal rules of civil procedure provide that "[a]ny ma t t e r admitted under this section is conclusively established unless the court on mo t i o n permits withdrawal or amendment of the admission." 12 Okla. Stat. § 3 2 3 6 ( B ) . Cf. Fed. R. Civ. P. 36(b). There is no indication that OBVME or Ms. D i x o n ever moved to withdraw or amend their original admission. Ms. Dixon c o n t e n d s that this precludes their challenge to the denial of summary judgment on t h i s issue. We agree that the defendants are bound by their admission, but regard the a d mi s s i o n as limited in practical effect. Defendants admitted that Ms. Dixon s p o k e "on occasion" to Ms. Kirkpatrick and Dr. Stock on matters of public c o n c e r n , but they were not asked and did not volunteer which statements those w e r e . We do not regard the admission as conclusive with respect to each and e v e r y statement Ms. Dixon made to these two persons, but only to preclude the a p p e l l a n t from arguing that none of Ms. Dixon's speech fell into that c o n s t i t u t i o n a l l y protected category. T h e speech involved in this case may be divided into three categories: (1) M s . Dixon's internal complaints to Ms. Kirkpatrick and others about the i n v e s t i g a t o r ' s conduct and other matters, (2) her complaint to Dr. Stock that the
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d o g f i g h t i n g investigation was unauthorized and improper, and (3) her complaints t o Dr. Stock about the way Mr. Fullerton and Ms. Kirkpatrick carried out their r e s p o n s i b i l i t i e s . In rejecting the defendants' motion for summary judgment on t h i s issue, the district court did not distinguish among these various categories of s p e e c h . The court held that "improper expenditures of public funds, illegal b e h a v i o r by OBVME employees including speeding in state-owned vehicles, and d i s c r i mi n a t o r y practices" were matters of public concern. "Improper expenditures o f public funds" is apparently a reference to Ms. Dixon's claim that the d o g f i g h t i n g investigation was beyond its authority. See Appellee's Br. 17. 4 We c o n c l u d e that Ms. Dixon's conversations with Dr. Stock regarding the supposedly i mp r o p e r use of OBVME resources to investigate the dogfighting ring involved ma t t e r s of public concern, but that none of the other subjects raised in her c o n v e r s a t i o n s were entitled to constitutional protection under the second prong of Garcetti/Pickering. T h e appellant argues that Ms. Dixon's "disagree[ment] with the i n v e s t i g a t i o n " and "disclos[ure of] its existence to one veterinarian" outside of a n y public forum or "any forum which could effect change in government policy" a mo u n t e d to nothing more than "the airing of a work related grievance." We find t h i s argument unpersuasive. OBVME's involvement in the dogfighting

I t also may refer to an incident in which Ms. Kirkpatrick allegedly mi s i d e n t i f i e d a $13 work-related expense on a reimbursement form.
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i n v e s t i g a t i o n was the subject of extensive reporting in a major local daily n e w s p a p e r . Dr. Stock, indeed, initiated his conversation with Ms. Dixon based o n his reading of a story in the newspaper. Moreover, Dr. Stock was not just "one v e t e r i n a r i a n " ; he was a member of the legislative committee of the veterinary p r o f e s s i o n a l association, which engaged in public advocacy on the subject of v e t e r i n a r y regulation and was concerned about the investigation. Both Ms. Dixon a n d Dr. Stock testified that they engaged in the conversation with a view to his r a i s i n g the issue with the authorities. Armed with the information he received f r o m Ms. Dixon, Dr. Stock confronted the director of OBVME at a legislative c o mmi t t e e meeting and demanded an explanation. That is sufficient to support t h e district court's legal conclusion that Ms. Dixon's speech on this subject was a ma t t e r of public concern. No such argument can be made about Ms. Dixon's complaints about Mr. F u l l e r t o n ' s conduct and Ms. Kirkpatrick's management style. These were mostly t r i v i a l in nature. They included such things as manner of dress, use of tobacco, d r i v i n g habits, temperament, a mislabeled $13 expense charge, and so forth. Serious complaints about discrimination can certainly be a matter of public c o n c e r n , but the record reveals discussion of nothing more than a few stray c o mme n t s . None of the issues other than the dogfighting investigation generated a n y press coverage, nor were they related to any legislative concerns. Dr. Stock r e p e a t e d l y stated in his deposition that his only concern was whether OBVME
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w a s conducting an investigation in the absence of any involvement by a v e t e r i n a r i a n . When he learned, contrary to the impression he had received from M s . Dixon, that veterinarians had in fact been involved in the dogfighting o p e r a t i o n , Dr. Stock was satisfied and did not think there was any other problem w i t h the investigation. When Ms. Dixon asked him whether he had brought up M r . Fullerton and "how things are being run there," Dr. Stock told her, "I don't r e a l l y care how that's being run. I didn't feel like that was any of my business to t e l l them how to run their business." R. 275-76 (Stock dep.). Whether speech is a matter of public concern is a legal issue, to be d e t e r mi n e d by the district court as a matter of law and reviewed de novo by the c o u r t of appeals. We conclude that, other than the issue of the dogfighting i n v e s t i g a t i o n , Ms. Dixon's complaints about individual co-workers and personnel i s s u e s were internal matters not of public concern. See, e.g., Curtis v. Okla. City P u b . Sch. Bd. of Educ., 147 F.3d 1200, 1212 (10th Cir. 1998). C. Disruption T h e third prong of the Garcetti/Pickering test is the nub of this case. After d e t e r mi n i n g that the employee's speech is protected (which we have just done), w e go on--in step three--to decide "whether the employee's interest in c o mme n t i n g on the issue outweighs the interest of the state as employer." Brammer-Hoelter, 492 F.3d at 1203 (quoting Casey v. W. Las Vegas Indep. Sch. D i s t . , 473 F.3d 1323, 1327 (10th Cir. 2007)). Although this element is framed as
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a "balancing" test, this Court has held that First Amendment rights "are protected ` u n l e s s the employer shows that some restriction is necessary to prevent the d i s r u p t i o n of official functions or to insure effective performance by the e mp l o y e e . ' " Gardetto v. Mason, 100 F.3d 803, 815 (10th Cir. 1996) (quoting W r e n v. Spurlock, 798 F.2d 1313, 1318 (10th Cir. 1986), in turn quoting Childers v . Ind. Sch. Dist. No. 1, 676 F.2d 1338, 1341 (10th Cir. 1982)); see Garcetti, 547 U S at 418 ("The question becomes whether the relevant government entity had an a d e q u a t e justification for treating the employee differently from any other me mb e r of the general public."); Brammer-Hoelter, 492 F.3d at 1207 ("the q u e s t i o n is whether the employer `has an efficiency interest which would justify it i n restricting the particular speech at issue'", (quoting Cragg v. City of O s a w a t o m i e , 143 F.3d 1343, 1346 (9th Cir. 1998))). In other words, unless the g o v e r n me n t employer can show that the termination was based on legitimate r e a s o n s grounded in the efficient conduct of public business, there is no need to p r o c e e d to balancing, and the First Amendment interest of the plaintiff prevails. This Court has explained that in assessing this third prong, a court should g e n e r a l l y consider "whether the [speech] impairs discipline . . ., has a detrimental i mp a c t on close working relationships . . ., or impedes the performance of the s p e a k e r ' s duties or interferes with the regular operation of the enterprise." G a r d e t t o , 100 F.3d at 815. We have cautioned that the employer "cannot rely on

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p u r e l y speculative allegations that certain statements caused or will cause d i s r u p t i o n . " Id. Citing Gardetto, but without further explanation, the district court denied s u mma r y judgment to the defendants on the ground that they "have failed to p r e s e n t sufficient evidence of actual disruption to outweigh Plaintiff's interest in h e r speech." Dist. Ct. Op. at 5. It is difficult to know, from this brief holding, to w h a t evidence the district court is referring and therefore what "pure issue of l a w " we are asked to address in this interlocutory appeal. See Johnson, 515 U.S. a t 319. The record in this case is lengthy. It contains a great deal of evidence, s o me of it conflicting, about the permissibility of a person in Ms. Dixon's p o s i t i o n divulging information regarding current or ongoing investigations. Both p a r t i e s pointed to record evidence relevant to these issues in their summary j u d g me n t briefs. We do not know whether to interpret the district court's cryptic r u l i n g as a statement of the court's factual assumptions (i.e., that the defendants h a d not carried their burden to show undisputed evidence in support of their p o s i t i o n ) or as a statement of the court's legal conclusion (i.e., that given the facts e s t a b l i s h e d by the record, OBVME's reasons for discharging Ms. Dixon were i l l e g i t i ma t e ) . It would be helpful in Garcetti/Pickering cases, when the third prong is c o n t e s t e d , for the district court to insist that the defendants identify precisely w h a t interests in the efficiency of the public service they believe were served by
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t h e termination, and for the district court to state in any order denying summary j u d g me n t on this ground whether its ruling is based on a factual insufficiency in t h e record or on a legal conclusion regarding the legitimacy of the asserted r e a s o n s for the termination. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2 5 0 n.6 (1986). Lacking any such clarity in this case, we are forced to delve mo r e deeply into the record than should be necessary in an interlocutory appeal of t h i s sort. 5 See Johnson, 515 U.S. at 319 (where the district court does not state t h e facts upon which it based its decision, "a court of appeals may have to u n d e r t a k e a cumbersome review of the record to determine what facts the district c o u r t , in the light most favorable to the nonmoving party, likely assumed"). T h e appellant argues primarily 6 that Ms. Dixon was discharged because, as a n employee in an investigative office with access to confidential information, s h e should not have divulged information about an ongoing investigation to o u t s i d e parties. Ms. Dixon's response rests primarily on the claim that although

We have examined all portions of the record cited by the parties. We h a v e not undertaken a de novo review of the entire record.
5

The appellant also argues that "Plaintiff's conduct . . . was disruptive," r e f e r r i n g to her refusal to work and disrespectful treatment of co-workers. Appellant's Br. 19. We agree with the appellee that this is essentially an a r g u me n t under the fifth prong of Garcetti/Pickering that she would have been f i r e d for her poor work performance even apart from her protected speech. The d e f e n d a n t s did not present that argument to the district court and it is not before u s on this appeal. See Cragg, 143 F.3d at 1347. Moreover, the appellee claims t h a t the facts regarding her disruptive behavior are disputed. Appellee's Br. 25 n.11.
6

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s h e discussed the investigation with an outside party, she did not divulge any i n f o r ma t i o n that was confidential and had not already been exposed in the press. The appellant notes that even if there is no evidence that Ms. Dixon revealed s p e c i f i c information that was confidential, she was apparently a source of " mi s i n f o r ma t i o n " : she led Dr. Stock to believe, falsely, that no veterinarians were i n v o l v e d in the dogfighting investigation, thus creating the impression that the i n v e s t i g a t i o n was illegitimate. Ms. Kirkpatrick also argues that it was c o n s t i t u t i o n a l l y permissible for the agency to fire an employee for discussing an o n g o i n g investigation with an outside party even if there was no evidence of s p e c i f i c confidential disclosures. W e agree with the appellant on both points. If a government employer is e n t i t l e d to dismiss an employee for divulging accurate confidential information n o t otherwise known to the public, the same must be true of false information. Certainly, the conveyance of false information would "interfere[] with the regular o p e r a t i o n of the enterprise." Gardetto, 100 F.3d at 815. Ms. Dixon's indiscretion l e d an influential member of the professional association regulated by the O B V M E to suspect agency wrongdoing, and to raise those suspicions at a meeting o f his legislative committee. In this instance, the Executive Director was able to d i s p e l his concerns at an early stage; but had the circumstances been different or D r . Stock been less cautious, the damage to the investigation and to OBVME's r e p u t a t i o n would have been more serious.
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C i t i n g to her own affidavit, the plaintiff responds that it is a disputed issue o f fact whether Ms. Dixon actually told Dr. Stock that no veterinarians were i n v o l v e d in the dogfighting operation, or even implied it. She avers that she " ma d e it clear" that a veterinarian was involved, R. 268­69 (Dixon affidavit), t h o u g h she never explains what she said to Dr. Stock that effected this c l a r i f i c a t i o n . We do not regard this dispute as material. Whether or not Ms. D i x o n imparted misinformation, it is undisputed that Dr. Stock interpreted her r e s p o n s e s as confirming his suspicion that no veterinarians were involved in the d o g f i g h t i n g operation. Her own affidavit confirms that she discussed whether a v e t e r i n a r i a n was involved. Whether the information she imparted to Dr. Stock w a s false or whether it was true, both participants confirm that their conversation t o u c h e d on an important bit of information that was not reported in the press or k n o w n to the public: whether OBVME's investigation involved any veterinarians. Ms. Dixon does not dispute that she was not authorized to divulge nonpublic i n f o r ma t i o n to outside parties. W e also agree with the appellant, as a matter of law, that under these c i r c u ms t a n c e s disclosure by a clerical employee of information about an ongoing i n v e s t i g a t i o n was a constitutionally sufficient basis for dismissal, even assuming t h e employer could not know whether she leaked specific information not known t o the press and public. The reasons for forbidding such disclosures are manifold. Press reports are not always accurate; confirmation by agency insiders can supply
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i mp o r t a n t information in the form of corroboration. (That is why the CIA r e g u l a r l y responds to inquiries by saying it can "neither confirm nor deny.") Q u e s t i o n e r s with special knowledge or background are often capable of eliciting n e w information even when their informant is unaware she is going beyond the p u b l i c record. Sometimes one question leads to another, and a well-intentioned i n f o r ma n t discovers she has unintentionally spilled the beans. And however c i r c u ms p e c t the agency employee may be, her supervisors are not usually able to mo n i t o r all conversations; a blanket rule against discussing ongoing i n v e s t i g a t i o n s is easier to enforce. Even drawing all factual inferences in Ms. Dixon's favor, and assuming she d i d not "compromise" the investigation merely by speaking to Dr. Stock, the s a l i e n t point, we believe, is that she was an employee who had access to c o n f i d e n t i a l information, and was repeatedly discussing an ongoing investigation w i t h an interested party outside her office. The (presumed) fact that she did not d i s c l o s e any specific confidential information is less important than that she could a n d might have--perhaps even without being aware she was doing so. Ms. K i r k p a t r i c k was the "point woman" to whom inquiries regarding OBVME i n v e s t i g a t i o n s were to be addressed. Having unauthorized employees taking it u p o n themselves to open up alternative channels of inside information about the o r g a n i z a t i o n and its practices plausibly constitutes a "disruption" in the operation o f the organization. Garetto, 100 F.3d at 815.
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I n response, the plaintiff argues first that there is no evidence in the record o f a formal OBVME policy against disclosure of information about an ongoing i n v e s t i g a t i o n , other than specific confidential information not already known to t h e press and public. Appellee's Brief at 27. We do not entirely agree. Testimony by the chairman of the OBVME, by Ms. Kirkpatrick, and by the p l a i n t i f f herself indicates that such a policy existed, was "common knowledge" a mo n g employees, and was known to Ms. Dixon. See supra 3­4, above. One me mb e r of the board, however, described the prohibition as a matter of "prudent" j u d g me n t while saying that it was not a "requirement." R. 380. Drawing all f a c t u a l inferences in favor of the plaintiff as the party opposing summary j u d g me n t , we assume that no such policy was formalized or officially made a " r e q u i r e me n t " of the job. But we do not think the dispute is material. Nothing in t h e First Amendment jurisprudence of the Supreme Court or this Court (or, so far a s we are aware, that of other Courts of Appeals) holds that public employees ma y not be terminated for speech that is disruptive to agency operations unless t h e agency had promulgated a formal policy on the issue in advance. Whether the e mp l o y e r ' s action was pursuant to a properly promulgated and announced official p o l i c y may be a question of contract law, employment law, or administrative law, b u t it is not a concern of the First Amendment. The question before us is whether t h e government employer's interest in restricting the employee's speech is s u f f i c i e n t to outweigh the employee's First Amendment interest. The existence of
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a formal policy may well strengthen the employer's argument in cases where such a policy has been promulgated, but its absence does not render the employer h e l p l e s s to discipline an employee whose speech has disrupted the work of the agency. The plaintiff argues next that there could be no genuine policy against d i s c l o s i n g information about an ongoing investigation because the board itself, a n d Ms. Kirkpatrick, made public statements regarding the investigation. Appellee's Br. 27. See R. 301 (Kirkpatrick dep.) (explaining what information s h e would provide in response to public inquiries). This is a non sequitur. It was p a r t of Ms. Kirkpatrick's job as Executive Director to address the media on O B V M E ' s behalf. R. 343 (Kirkpatrick dep.). It does not follow from the fact t h a t agencies or heads of agencies must sometimes provide information to the p u b l i c about investigations that low-level employees who have access to c o n f i d e n t i a l materials may take it upon themselves to reveal information about i n v e s t i g a t i o n s . A district attorney will often speak to the press about an i n v e s t i g a t i o n ; that does not mean that every employee in the homicide division is f r e e to do the same. T h e plaintiff argues next that a policy prohibiting Ms. Dixon from d i s c l o s i n g information about investigations "would have violated state law." Appellee's Br. 28, citing the Oklahoma Open Records Act and Oklahoma Statute T i t . 51, § 24A.1 et seq. This Act does not require or permit clerical employees or
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i n v e s t i g a t i v e assistants to speak to outsiders about investigations. The obligations r u n to the agency, not to Ms. Dixon. Moreover, Ms. Dixon does not specify w h i c h "record" she was prevented from "disclosing" to the public. Her unofficial c o n v e r s a t i o n s with Dr. Stock in his veterinary office on her own time had nothing t o do with providing public records to anyone "during regular business hours." O k l a . Stat. Tit. 51, § 24A.5. T h e plaintiff's final argument on this point is that such a policy would be a " p r i o r restraint on speech," which would violate the First Amendment "on its face a n d as applied to Ms. Dixon." Appellee's Br. 28. This argument defies both law a n d common sense. Ms. Dixon was not restrained before the fact; she was t e r mi n a t e d after the fact for speech believed to be disruptive of agency o p e r a t i o n s . "[U]nlike an adverse action taken in response to actual speech, [a p r i o r restraint] chills potential speech before it happens." Brammer-Holter, 492 F . 3 d at 1209 (quoting Arndt v. Koby, 309 F.3d 1247, 1251 (10th Cir. 2002)). Typically, a prior restraint is a requirement that a speaker obtain government a p p r o v a l for her message in advance of publishing it--or, in rare cases, a "gag o r d e r " targeted at particular speech. Arndt, 309 F.3d at 1251­52. There is n o t h i n g in this case to suggest that OBVME's response to Ms. Dixon's speech w a s anything other than an "adverse action" that was "taken in response to actual speech."

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H a v i n g concluded that OBVME had a legitimate reason for terminating Ms. D i x o n , rooted in the disruptive effect of disclosures by employees of information a b o u t ongoing investigations, we must turn to the balancing. Ms. Dixon's speech r e g a r d i n g the conduct of the dogfighting investigation arguably sought to expose w h a t she perceived to be the misuse of public funds by Mr. Fullerton and, by e x t e n s i o n , OBVME. Characterized as such, that speech was of public concern, a n d putting aside its allegedly misleading character as we must (even false speech d e s e r v e s some First Amendment protection), even of some public importance. See Conaway v. Smith, 853 F.2d 789, 797 (10th Cir. 1988) ("Speech that seeks to e x p o s e improper operations of the government . . . clearly concerns vital public i n t e r e s t s . " ) . But we have to weigh Ms. Dixon's interest in making that speech, a n d the interest of her audience in hearing it, against the interests of her g o v e r n me n t employer. Brammer-Hoelter, 492 F.3d at 1207. While "there is no e a s y formula for `weighing' an employee's First Amendment speech against an e mp l o y e r ' s interest in an efficient and disciplined work environment," Id. ( q u o t i n g Casey, 473 F.3d at 1333), the balance in this case clearly tips towards OBVME. The Supreme Court has recognized the employer's significant interest in r e g u l a t i n g speech that "interferes with the regular operation of the enterprise." Rankin v. McPherson, 483 U.S. 378, 388 (1987); see also Flanagan v. Munger, 8 9 0 F.2d 1557, 1566 (10th Cir. 1989) (citing employer's interest in "avoiding
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d i r e c t disruption . . . of the public employer's internal operations and employment r e l a t i o n s h i p s . " ) . Certainly having to worry about the possibility that Ms. Dixon w o u l d leak confidential information counts as disruptive of the everyday o p e r a t i o n s of OBVME. OBVME has every reason for a policy that discourages e mp l o y e e s from speaking out on outgoing investigations, especially employees w h o have regular access to confidential and sensitive information. Pickering also alludes to the interests of an employer in speaking in a s i n g l e , consistent voice. Pickering, 391 U.S at 572-573. See also Cass R. S u n s t e i n , Government Control of Information, 74 Cal. L. Rev. 889, 919 (1986) ( " I n its capacity as employer, the government has two interests that come up in ma n y contexts: the desire to avoid disruption of working relationships and the n e e d to set out a uniform official position."). By speaking out, unauthorized by h e r employer, Ms. Dixon not only risked compromising the dogfighting i n v e s t i g a t i o n (an investigation that was still going on) but also frustrated the a b i l i t y of OBVME to control and fashion its own message. Both of these are i mp o r t a n t interests, and in this case we find that, when balanced against Ms. D i x o n ' s speech rights, they should win out. We need not, and could not, decide today the full range of circumstances in w h i c h a government employer is entitled to forbid discussion of agency o p e r a t i o n s with outside parties. We can address only the circumstances of this c a s e . Among the circumstances that inform our decision are (1) that OBVME is
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a n investigative agency with legitimate concerns about confidentiality; (2) the b r e a c h of confidence involved an ongoing investigation; (3) the employee i n v o l v e d was in investigative assistant, with access to confidential information b e c a u s e of her typing and filing duties but no discretionary authority over the ma t t e r s she discussed; (4) the employee was aware that the agency did not want i t s employees to discuss investigations with outside parties, but instead to refer i n q u i r i e s about investigations to the executive director; (5) the disclosures did not i n v o l v e criminal misconduct 7 or other serious wrongdoing, but at worst the e mp l o y e e ' s disagreement about the use of agency resources; and (6) the d i s c l o s u r e s were made to an interested outside party and not to a public body with a u t h o r i t y to investigate or redress her employers' wrongdoing if there were any. W e offer no opinion regarding other potential cases. We therefore hold that, on de novo review of this issue of law, the d e f e n d a n t s ' termination of an employee for unauthorized disclosure of i n f o r ma t i o n about an ongoing investigation, under the circumstances of this case, w a s "necessary to prevent the disruption of official functions or to insure e f f e c t i v e performance by the employee.'" Gardetto, 100 F.3d at 815. The

Some of Ms. Dixon's speech, apart from her speech about the dogfighting i n v e s t i g a t i o n , may have involved allegations of criminal misconduct such as s p e e d i n g or mislabeling expense reports. We confine our attention here to aspects o f Ms. Dixon's speech that we have concluded addressed matters of public concern.
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a p p e l l a n t is entitled to qualified immunity on the ground that the defendants' a c t i o n s did not violate the plaintiff's First Amendment rights. IV. CONCLUSION T h e judgment of the United States District Court for the Western District of O k l a h o ma is REVERSED, and the case remanded for entry of an order granting s u mma r y judgment in favor of the appellant.

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