Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—10th Cir.: Court erred in dismissing First Amendment claim of officer fired after discovery of old Facebook posts, (Jan 8, 2025)

By Kathleen Kapusta, J.D.

Conducting “Pickering balancing is usually inappropriate – if not impossible – at the motion to dismiss stage.”

Reversing a lower court’s dismissal of a Tulsa, Oklahoma, police officer’s free speech claims—he was fired after some of his old Facebook posts, including an image of Donald Trump riding a lion with the Confederate flag and of a fist acknowledging the fight against Islam, were brought to the city’s attention—the Tenth Circuit explained that the district court erred in conducting the Pickering balancing test before the parties proceeded to discovery and in granting qualified immunity to the police chief. The appeals court, however, affirmed dismissal of the officer’s equal protection claim, finding that it was a quintessential “class-of-one” claim, which is not viable in the public employment context (Brown v. City of Tulsa, No. 23-5133 (10th Cir. Jan. 7, 2025)).

Facebook images. Shortly after the officer graduated from the Tulsa Police Department and started field training, a Tulsa activist posted commentary on Facebook regarding the officer’s old social media posts. The activist’s post included screenshots from the officer’s Facebook page of an image of “yet-to-be-president Donald Trump” riding a lion with a Confederate flag in the background; an image of a fist covered in stars and stripes with the caption “When the day comes I will fight to my last breath before I submit to Islam”; and an image associated with the blue lives matter movement.

The activist contended that the officer’s posts clearly indicated that he “has biases towards people who practice Islam and Black Americans.” She questioned why “the recruiter did not verify this officer’s social media platforms before offering this person a job that gives a license to kill.” At some point, the activist updated her post to include additional screenshots of the officer’s prior Facebook posts, including an image of Michelle Obama urging her to “Go back to Chicago and take your South Chicago values and your socialist family with you” and an image originally posted by “Stop Islamization of the world.”

Termination. Shortly after the activist’s post, the officer was called into a meeting with a captain and Internal Affairs officers where he was told he was being terminated because he had violated the department’s social media policy. When he pointed out that the posts were three-to-six years old and asked if he would be given an opportunity to present “his side of it,” he was purportedly told that “they were not there to listen to anything [he] had to say and he needed to sign the termination paper.”

Soon thereafter, the department’s Public Information Officer, responding to a media inquiry, stated that “Early yesterday morning the police department was notified of some questionable social media posts by one of our officers. The Chief... immediately ordered internal affairs to open an investigation, and within one hour and 15 minutes of receiving the complaint the officer was terminated.”

Lower court proceedings. In his subsequent lawsuit against the city and the chief, the officer brought claims under Section 1983 for violations of his First Amendment rights and the Fourteenth Amendment’s Equal Protection Clause. The district court dismissed his First Amendment claim against the city for failure to state a claim, dismissed the claim against the chief in his individual capacity, finding he was entitled to qualified immunity, and dismissed his Equal Protection claim against the city and chief for failure to state a claim.

Free speech claim. Addressing the officer’s claim that he was fired based on the content and viewpoint of his speech while he was speaking as a private citizen commenting on matters of public concern, the Tenth Circuit noted that at issue was whether the city’s interest in promoting the efficiency of the public services it provides outweighed his free speech interests. Under the Pickering balancing test, the court observed, courts must balance an employee’s right to free speech against the government’s interest as an employer.

Further, when the adverse action occurs long after the plaintiff’s speech, the government must demonstrate actual disruption rather than the intent to avoid actual disruption. “Ultimately,” said the court, “the government’s burden to justify an adverse employment action against the plaintiff varies depending on the nature of the speech and the position held by the employee.”

Pickering balancing. Turning to how Pickering balancing applies at the motion to dismiss stage, the court noted that without discovery, a plaintiff cannot allege facts addressing both sides of the scale for the balancing analysis and the government bears the burden of demonstrating its interest and proving disruption. As a result, said the court, siding with several of its sister Circuits, “conducting Pickering balancing is usually inappropriate – if not impossible – at the motion to dismiss stage.” While the court had previously recognized this, it pointed out that it had done so in unpublished, non-precedential decisions.

Under this same rationale, said the court, qualified immunity usually also cannot be afforded at the motion to dismiss stage in a First Amendment retaliation claim in the public employment context. “Practically speaking, the plaintiff will not know what interest the government will assert, how it will assert it, or what disruption the government claims the speech caused, making it impossible for the plaintiff to (1) allege facts sufficient to show that the defendant ‘plausibly violated their constitutional rights,’ and (2) identify a materially similar case where the employee prevailed to demonstrate that their First Amendment right was clearly established.” Explaining that Pickering balancing can only be applied after the parties have had an opportunity to conduct some discovery, the Tenth Circuit found the district court erred in conducting the balancing test at the motion to dismiss stage.

Facts not pled in complaint. In addition, the court pointed out, the city, in its motion to dismiss, introduced several facts not pled by the officer in his complaint. By relying on these facts in balancing the parties’ interests, the district court clearly erred. Though the officer alleged that the news media covered the story and that his termination undermined the trust and confidence of other officers in their leadership, suggesting the department would “‘throw them under the bus’ to promote political correctness and to appease political activists,” these allegations failed to satisfy the city’s burden of proving the officer’s speech caused disruption to the department’s internal operations. Not only were there no allegations these events caused internal disruptions, but also the events occurred after the officer’s termination and resulted more from his firing than from his Facebook posts.

Further, the appeals court pointed out, the district court construed the officer’s allegation against him, rather than in his favor. He alleged that any internal disruption was caused by the city, which terminated him just an hour and 15 minutes after being notified of his Facebook posts and then publicized the decision to the media, which caused the other officers to no longer respect the chief and fear that he would also throw them under the bus if it was politically useful for him to do so. These facts supported the officer’s claim and the district court erred by citing his allegations in support of dismissal and concluding that he alleged that he caused internal disruption.

Finding that the officer stated a First Amendment retaliation claim and that the district court erred in dismissing this claim against the city and in granting qualified immunity to the chief, the court reversed the dismissal of this claim against the city and the chief.

Equal Protection claim. As to the officer’s claim the defendants “chose to selectively enforce their policies, practices, procedures, and/or customs against [him] out of an arbitrary desire to discriminate against [him] because of the content and viewpoint of his political beliefs” in violation of the Equal Protection Clause, the appeals court found that he was “alleging a quintessential ‘class-of-one’ Equal Protection claim.” Because such a claim is not viable in the public employment context, the court affirmed the dismissal of this claim against both the city and the chief.

The case is No. 23-5133.

Judge: Federico, R.

Attorneys: Robert Joseph Muise (American Law Freedom Center) and Scott Wood (Puhl & Wood) for Wayne Brown. R. Lawson Vaughn, III, Senior Assistant City Attorney, for City of Tulsa and Charles W. Jordan.

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