Case 4:19-cv-00538-WPJ-CDL Document 30 Filed in USDC ND/OK on 11/21/23 Page 1 of 29
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OKLAHOMA
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`
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`Plaintiff,
`
`WAYNE BROWN,
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`
`
`v.
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`
`
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`
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`
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`
`
`No. 19-cv-00538-WPJ-FHM
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`(1) CITY OF TULSA; and
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`(2) CHARLES W. JORDAN,
`individually and in his official capacity as
`Chief of Police, Tulsa Police Department;
`
`
`
`
`
`
`Defendants.
`
`
`MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT CITY OF
`TULSA’S MOTION TO DISMISS AND GRANTING DEFENDANT JORDAN’S
`MOTION TO DISMISS
`
`THIS MATTER comes before the Court1 upon Defendants City of Tulsa’s (“Defendant
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`City”) and Defendant Charles W. Jordan’s (“Defendant Jordan”) Motions to Dismiss (Docs. 13,
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`14), each filed February 3, 2020. Plaintiff Wayne Brown (“Plaintiff”) timely responded to each
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`(Docs. 17, 18), to which Defendants replied (Docs. 20, 21). Having reviewed the relevant
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`pleadings and the applicable law, the Court finds Defendants’ Motions are well-taken and,
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`therefore, GRANTS the Motions.
`
`BACKGROUND2
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`Five years ago, on October 24, 2018, Plaintiff received news from the Tulsa Police
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`Department (“TPD”) that he was selected for the Tulsa Police Academy (“Academy”). Doc. 6 at
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`1 Chief United States District Court Judge William P. Johnson of the District of New Mexico was assigned this case
`as a result of the Tenth Circuit Order designating Judge Johnson to hear and preside over cases in the Northern District
`of Oklahoma.
`2 The following recitation of facts derive from Plaintiff’s First Amended Complaint (Doc. 6), which the Court, as it
`must on a motion to dismiss, accepts as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2008).
`
`

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`Case 4:19-cv-00538-WPJ-CDL Document 30 Filed in USDC ND/OK on 11/21/23 Page 2 of 29
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`⁋ 17. The Academy commenced on January 22, 2019 (at which time Plaintiff began his
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`employment with TPD) and lasted a rigorous twenty-eight weeks. Id. at ⁋⁋ 19, 22. Prior to and
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`during the Academy, Plaintiff was subject to close scrutiny and background investigations to
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`ensure he had the demeanor, character, and temperament to become a uniformed police officer. Id.
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`at ⁋⁋ 20, 22. Twenty-eight weeks later, Plaintiff successfully completed the Academy. Id. at ⁋ 23.
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`Shortly thereafter, on August 6, 2019, Plaintiff began his field training with TPD Officer Jim
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`Tornberg, which progressed without issue. Id. at ⁋⁋ 26, 28–31. Defendant Charles W. Jordan was
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`the Chief of Police for the TPD during the relevant timeline of this case. Id. at ⁋16.
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`Plaintiff’s employment as an officer was short-lived and less than one month later, on
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`September 4, 2019, he was terminated from TPD. Id. at ⁋ 32. On the morning of his termination,
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`Plaintiff knew something was brewing behind the scenes. Id. at ⁋ 56. This is because around 11:11
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`a.m., a friend forwarded to Plaintiff a copy of a local political activist’s Facebook posts which
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`referred to a number of old posts made by Plaintiff. Id. at ⁋ 55. Marq Lewis, “a local, radical, left-
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`wing, political activist and agitator” posted on his Facebook that Plaintiff “has biases towards
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`people who practice Islam and Black Americans.” Id. at ⁋⁋ 33, 37. Lewis reached this conclusion
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`by referencing “very offensive social media” posts made by Plaintiff, under his Facebook name,
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`“Duke Brown.” Id. at ⁋⁋ 38. The posts complained of by Lewis are described by him as follows
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`(typographical errors in original):
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`Image of The president riding a lion with the Confederate flag.
`Image of the a first, acknowledging a fight against the religious faith, Islam.
`Image of the punisher with crosshairs. The image originated from the American
`sniper Chris Kyle who was very controversial with killing Iraqi citizens along with
`killing American citizens during Katrina.”
`
`Id. at ⁋⁋ 38, 72.A, 72.B., 72.C. See infra Table 1.
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`
`
`2
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`

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`Marq Lewis then made a complaint to Defendants regarding these old Facebook posts. Id.
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`at ⁋ 34. With a hunch that something was brewing, at approximately 2:05 p.m., Plaintiff was told
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`by Captain Thom Bell to come in the meeting room where Captain Luke Sherman and Internal
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`Affairs officers were waiting. Id. at ⁋ 40. Plaintiff entered the room, the door was closed behind
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`him, and he was instructed to remove his gun belt. Id. at ⁋ 41. Plaintiff complied and handed his
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`gun belt to the Internal Affairs officer to his immediate left, who then laid it on the table. Id. at ⁋
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`42. Plaintiff was told to sit down, which he did. Id. at ⁋ 43. He was then handed an Interoffice
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`Correspondence from Defendant Jordan dated September 4, 2019, with the subject line, “Personnel
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`Order #19-257 Termination,” and was told to read it. Id.3 The Interoffice Correspondence stated
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`Plaintiff’s employment was “hereby terminated effective immediately,” because the TPD “was
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`made aware of social media postings made by [Plaintiff] that violate Department Rules &
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`Regulations and Policies and Procedures.” Id.
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`
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`The relevant TPD policy is “Policy and Procedure 31-324 (Social Media and Networking)
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`Procedures C.6.,” which states,
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`Department personnel should be mindful that their speech, when using social
`media, is public and becomes part of the worldwide electronic domain, Therefore,
`adherence to the department’s code of conduct is required in the personal use of
`social media. In particular, department personnel are prohibited from posting
`speech containing obscene or sexually explicit language, images, acts, and
`statements or other forms of speech that ridicule, malign, disparage, or otherwise
`express bias against any race, religion, or protected class of individuals.
`
`Id. at ⁋ 45 (hereinafter “TPD Social Media Policy”).
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`During the meeting on September 4, and consistent with the Interoffice Correspondence,
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`Plaintiff was told that his employment was being terminated because he violated the TPD Social
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`3 The Interoffice Correspondence, referenced in the First Amended Complaint, was also attached to the Complaint as
`Exhibit A. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002) (“[T]he district court may consider
`documents referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do not
`dispute the documents’ authenticity.”).
`
`
`
`3
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`

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`Media Policy via his Facebook posts complained of by a citizen. Id. at ⁋⁋ 48–49. “Within one hour
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`and fifteen minutes of receiving the complaint the officer was terminated,” TPD Sergeant Shan
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`Tuell told reporters. Id. at ⁋ 35. After receiving his termination, Plaintiff asked if they were going
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`to give him a chance to explain “his side of it,” to which Captain Bell and an Internal Affairs
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`officer said they were not there to listen to anything Plaintiff had to say and that he needed to sign
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`the termination paper. Id. at ⁋ 50. Plaintiff stated that this was not right and that he had done
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`nothing wrong. Id. at ⁋ 51. Plaintiff told them that the posts were three to six years-old and that
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`termination was complete “BS.” Id. at ⁋ 54. Nevertheless, Plaintiff asked if there was any way that
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`he could talk to Chief Jordan about this termination decision. Id. at ⁋ 52. The officers would not
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`say exactly but did say they would relay his message to Chief Jordan. Id.
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`To avoid further embarrassment, Plaintiff asked the officers to please not make him do a
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`“shame walk” in front of everyone as he left, and they agreed. Id. at ⁋ 57. Plaintiff signed the
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`Interoffice Correspondence, though he did not want to. Id. at ⁋ 58. His patrol car was cleaned out
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`and Plaintiff was then led out of the meeting room and out the back door. Id. at ⁋⁋ 59–60. At this
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`point, Plaintiff was “totally dejected, embarrassed, and humiliated.” Id. at ⁋ 61.
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`The next day, September 5, 2019, at around 1:00 p.m., Plaintiff returned to TPD to bring
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`the rest of his TPD property he still had and to retrieve personal headphones he had left. Id. at ⁋
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`63. Upon giving him his personal headphones, Captain Bell told Plaintiff, “On a personal note I
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`didn’t want to do this . . . and I think [it’s] BS, but understand I have a job to do as well and best
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`of luck to you in the future,” or words to that effect. Id. at ⁋ 64.
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`Then the media got a hold of the story. Shortly after the firing, news reports began
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`circulating and social media erupted, condemning Plaintiff and labeling him as a racist and an
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`Islamophobe. Id. at ⁋ 66. In response to a media inquiry, Sgt. Tuell, TPD’s Public Information
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`4
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`Officer, wrote: “Early yesterday morning the police department was notified of some questionable
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`social media posts by one of our officers. The Chief . . . immediately ordered internal affairs to
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`open an investigation, and within one hour and 15 minutes of receiving the complaint the officer
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`was terminated.” Id. at ⁋ 68. Defendants confirmed with the media that Plaintiff was terminated
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`because Defendants believed that Plaintiff violated the TPD Social Media Policy prohibiting
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`personnel “from posting forms of speech that express bias against any race, religion, or protected
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`class of individuals.” Id. at ⁋ 69. Below is a table of three social media posts that Plaintiff alleges
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`“served as Defendants’ basis for terminating Plaintiff,” along with Plaintiff’s description of the
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`posts. Id. at ⁋ 72.4 All of the posts that potentially served as the basis for terminating Plaintiff were
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`made years before Plaintiff’s employment with TPD. Id. at ⁋ 74.
`
`Table 1
`
`⁋
`
`Facebook Post
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`Plaintiff’s Description
`
`72.A.
`
`“An image of yet-to-be-president Donald
`Trump (‘Trump Post’), which was posted
`on or about August 6, 2015:”
`
`
`
`
`4 In total, there were nine Facebook posts that Marq Lewis complained of on social media. Doc. 6, at ⁋⁋72–73.
`However, Plaintiff alleges that it is three posts (⁋⁋ 72.A., 72.B., 72.C.) that likely prompted his termination. Id. at ⁋72.
`Also, at a hearing, Deputy Chief Eric Dalgliesh stated Plaintiff was terminated for posting only two images: the Trump
`Post and the Blue Lives Matter Post. Id. at ⁋ 90. Therefore, the Court will confine its analysis to the three posts in
`Table 1.
`
`
`
`5
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`72.B.
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`72.C.
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`
`
`
`
`that
`the point
`image making
`“An
`Americans (particularly Christians, such
`as Plaintiff, who will not convert or
`submit to Islam as a matter of religious
`conviction) will not surrender or submit
`to sharia-supremacism, which
`is a
`tyrannical form of government prevalent
`in countries such as Iran and a form of
`governance demanded by
`terrorist
`organizations such as ISIS and Al Qaeda.
`The image was posted on or about
`November 15, 2015:”
`
`the famous
`image created by
`“An
`American sniper and decorated war hero
`Chris Kyle superimposed over
`the
`American flag with a thin blue line—the
`flag image is associated with the ‘blue
`lives matter’ movement. This image
`(‘Blue Lives Matter Post’) was posted on
`or about March 24, 2016.”
`
`
`
`
`
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`Plaintiff alleges that the termination has caused him public humiliation, embarrassment,
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`anger, and stress. Id. at ⁋ 85. He alleges that this termination has undermined the trust and
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`confidence that the TPD police officers have in their leadership, in that Defendants’ will “throw
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`them under the bus” to promote political correctness and appease political activists. Id. at ⁋ 86.
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`
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`Because of his termination, Plaintiff requested unemployment benefits, which were
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`initially denied. Id. at ⁋ 89. Deputy Chief Eric Dalgliesh, who was testifying for the City, stated
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`6
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`that Plaintiff was terminated for posting only two images on his Facebook page: the Trump Post
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`and the Blue Lives Matter Post. Id. at ⁋ 90. On September 26, 2019, Plaintiff submitted to the City
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`Clerk a Notice of Tort Claim, seeking recovery for wrongful termination under state law. Id. at ⁋
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`92.
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`Plaintiff filed this action in federal court on October 9, 2019, against Defendant City of
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`Tulsa and Defendant Charles W. Jordan, in his official and individual capacities. See Docs. 2, 6.
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`In his First Amended Complaint, Plaintiff alleges that the Defendants violated his First
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`Amendment rights by retaliating against his speech, Defendants violated his rights under the Equal
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`Protection Clause of the Fourteenth Amendment, and Defendants wrongfully discharged Plaintiff
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`under Oklahoma common law (Burk claim). Doc. 6 at ⁋⁋ 94–110. Plaintiff seeks declaratory relief,
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`injunctive relief, and damages. Id. at Prayer for Relief. Defendants then filed a motion to dismiss
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`under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Docs. 13, 14.
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`STANDARD
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`The federal rules require a complaint to contain “a short and plain statement of the claim
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`showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To “survive a motion to
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`dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
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`relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
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`Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although a court must accept all the complaint’s
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`factual allegations as true, the same is not true of legal conclusions. See id. Mere “labels and
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`conclusions” or “formulaic recitation[s] of a cause of action” will not suffice. Twombly, 550 U.S.
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`at 555. “Thus, in ruling on a motion to dismiss, a court should disregard all conclusory statements
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`of law and consider whether the remaining specific factual allegations, if assumed to be true,
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`
`
`7
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`

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`plausibly suggest the defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214
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`(10th Cir. 2011).
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`Overall, the “plausibility” standard refers to “the scope of the allegations in a complaint: if
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`they are so general that they encompass a wide swath of conduct, much of it innocent, then the
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`plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’” Robbins v.
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`Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “‘The
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`Twombly standard may have greater bite’ in the context of a § 1983 claim against individual
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`government actors, because ‘they typically include complex claims against multiple defendants.’”
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`Kan. Penn Gaming, LLC, 656 F.3d at 1215 (quoting Robbins, 519 F.3d at 1249). It is “particularly
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`important in such circumstances that the complaint make clear exactly who is alleged to have done
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`what to whom, to provide each individual with fair notice as to the basis of the claims against him
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`or her, as distinguished from collective allegations against the state.” Kan. Penn Gaming, LLC,
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`656 F.3d at 1215 (internal quotation marks omitted).
`
`DISCUSSION
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`The Court will first discuss Defendant City of Tulsa’s Motion to Dismiss (Doc. 13),
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`including the First Amendment claim and the equal protection claim. Second, the Court will
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`discuss Defendant Jordan’s Motion to Dismiss (Doc. 14), including the official capacity claims,
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`and the claims in his individual capacity (First Amendment and equal protection claims). Third,
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`the Court will move on to discuss the declaratory and injunctive relief requested by Plaintiff.
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`Finally, the Court will discuss Plaintiff’s state law Burk claim against both Defendants.
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`I.
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`City of Tulsa
`
`A.
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`First Amendment Claim
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`
`
`8
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`

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`Plaintiff argues that Defendant City punished and retaliated against him because of the
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`expression of his political and religious viewpoints, in violation of Plaintiff’s First Amendment
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`free speech rights. Doc. 6, at ⁋⁋ 95–100; Doc. 17. Defendant City disagrees and concludes its
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`interest, as employer, outweighed Plaintiff’s free speech interest. Doc. 13. For reasons detailed
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`below, the Court finds Defendant City’s Motion is well-taken.
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`Sitting on the Supreme Judicial Court of Massachusetts in 1892, Justice Holmes observed:
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`A policeman “may have a constitutional right to talk politics, but he has no constitutional right to
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`be a policeman.” McAuliffe v. City of New Bedford, 29 N.E. 517, 517 (Mass. 1892). This was the
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`unchallenged dogma for many years, that “a public employee had no right to object to conditions
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`placed upon terms of employment—including those which restricted the exercise of constitutional
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`rights.” Connick v. Myers, 461 U.S. 138, 143 (1983). However, that “dogma has been qualified in
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`important respects.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).
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`Now, the Supreme Court “has made clear that public employees do not surrender all their
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`First Amendment rights by reasons of their employment. Rather, the First Amendment protects a
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`public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public
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`concern.” Garcetti v. Ceballos, 547 U.S. at 417. This First Amendment protection exists even if
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`the public employee is probationary and even if the public employee can be discharged for any
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`reason or no reason at all. Rankin v. McPherson, 483 U.S. 378, 383–84 (1987). The challenge,
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`however, is to “arrive at a balance between the interests of the [public employee], as a citizen, in
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`commenting upon matters of public concern and the interest of the State, as an employer, in
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`promoting the efficiency of the public services it performs through its employees.” Pickering v.
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`Bd. of Ed. of Tp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968); see also Garcetti, 547 U.S. at 420
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`(“The Court’s decisions, then, have sought to promote the individual and societal interests that are
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`9
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`

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`served when employees speak as citizens on matters of public concern and to respect the needs of
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`government employers attempting to perform their important public functions.”).
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`The Pickering Court sought to achieve this balance through the adoption of a four-part test
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`to be implemented in public-employee, free-speech cases. See, e.g., Kent v. Martin, 252 F.3d 1141,
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`1143 (10th Cir. 2001) (describing Pickering test). The Court in Garcetti “expanded on the
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`Pickering test by adding a fifth, threshold inquiry that seeks to determine whether the speech at
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`issue was made pursuant to the public employee’s official duties.” Leverington v. City of Colorado
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`Springs, 643 F.3d 719, 724 (10th Cir. 2011). “Thus, after Garcetti, ‘it is apparent that the
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`“Pickering” analysis of freedom of speech retaliation claims is a five-step inquiry which we now
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`refer to as the “Garcetti/Pickering” analysis.’” Id. (quoting Brammer-Hoelter v. Twin Peaks
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`Charter Acad., 492 F.3d 1192, 1202 (10th Cir. 2007)).
`
`The familiar Garcetti/Pickering test includes the following inquiries:
`
`(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.
`
`Duda v. Elder, 7 F.4th 899, 910 (10th Cir. 2021). “‘The first three elements are issues of
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`law for the court to decide, while the last two are factual issues typically decided by the jury.’”
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`Knopf v. Williams, 884 F.3d 939, 945 (10th Cir. 2018) (quoting Trant v. Oklahoma, 754 F.3d 1158,
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`1165 (10th Cir. 2014)).
`
`i.
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`Employee’s Official Duties
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`Defendant City states, “there is no dispute that Plaintiff spoke as a private citizen rather
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`than as a public employee and the first element of the Garcetti/Picke[r]ing analysis is satisfied.”
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`10
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`Doc. 13, at 11. Plaintiff states, “it is without dispute that Plaintiff’s protected expression was made
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`years prior to his hiring by the City as a police officer and thus well before he was a public
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`employee . . . .” Doc. 17, at 17 (emphasis in original). The First Amended Complaint alleges
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`Plaintiff commenced his employment with TPD on January 22, 2019, and the Facebook posts at-
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`issue were published in 2015 and 2016. Doc. 6, at ⁋⁋ 19, 72. Therefore, it is undisputed by the
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`parties and there are no allegations in the First Amended Complaint to indicate Plaintiff’s exercise
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`of his right to free speech was made pursuant to his official duties. Therefore, this element weighs
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`in Plaintiff’s favor. See Cramer v. Okla. Cnty. Bd. Of Cnty. Comm’rs, 2018 WL 8966815, at *4
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`(W.D. Okla. May 30, 2018).
`
`ii.
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`Matter of Public Concern / Protected Expression
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`A “public employee’s speech is entitled to Pickering balancing only when the employee
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`speaks ‘as a citizen upon matters of public concern’ rather than ‘as an employee upon matters only
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`of personal interest.’” City of San Diego v. Roe, 543 U.S. 77, 83 (2004) (quoting Connick v. Myers,
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`461 U.S. 138, 147 (1983)). Whether speech addresses a matter of public concern is determined by
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`“the content, form, and context of a given statement, as revealed by the whole record.” Connick v.
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`Myers, 461 U.S. at 147–48. Public concern relates “to any matter of political, social, or other
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`concern to the community . . . .” Id. at 146. Additionally,
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`public concern is something that is a subject of legitimate news interest; that is, a
`subject of general interest and of value and concern to the public at the time of
`publication. The Court has also recognized that certain private remarks, such as
`negative comments about the President of the United States, touch on matters of
`public concern and should thus be subject to Pickering balancing.
`
`City of San Diego v. Rose, 543 U.S. at 83–84.
`
`
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`If an employee’s speech does not touch on a matter of public concern, “the employee has
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`no First Amendment cause of action based on his or her employer’s reaction to the speech.”
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`
`
`11
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`

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`Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); see also Connick, 461 U.S. at 146 (If the speech
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`does not relate to any matter of public concern, then “government officials should enjoy wide
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`latitude in managing their offices, without intrusive oversight by the judiciary in the name of the
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`First Amendment.”).
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`
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`However, the Tenth Circuit has recognized the threshold public concern test is not
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`applicable to all situations. In Flanagan v. Munger, police officers were reprimanded for violating
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`off-duty employment regulations for conduct unbecoming of an officer by owning and operating
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`a video rental store that sold and rented out sexually explicit videos. 890 F.2d 1557, 1560–61 (10th
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`Cir. 1989). The officers sued the Chief of Police and the City, alleging the defendants violated
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`their First Amendment rights. Id. at 1561. The Tenth Circuit stated that the Pickering/Connick
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`public concern test does not apply “when public employee nonverbal protected expression does
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`not occur at work and is not about work.” Id. at 1564. The Court identified that simply owning a
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`store is “not debate or explicit verbal speech” and if “plaintiffs had made off-duty statements
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`supporting sexually explicit films, those comments would almost surely relate to a matter of public
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`concern.” Id. at 1563. The Flanagan Court explained:
`
`When a statement is made at or about work, use of the public concern test, indeed
`a narrow definition of public concern, makes sense. . . . However, in a case like this
`of nonverbal protected expression not at or about the workplace, the “speech”
`already takes place outside of the workplace and thus the purpose behind using the
`public concern is simply irrelevant.
`
`The formulation of the public concern test in Connick and its progeny also implies
`that the test is not intended to apply to areas in which the employee does not speak
`at work or about work. . . . Thus, the Connick public concern test is intended to
`weed out speech by an employee speaking as an employee upon matters only of
`personal interest. The speech of the plaintiffs in this case is clearly not speech as an
`employee, and thus does not fulfill the purpose of the public concern test. . . .
`Clearly, plaintiffs are not speaking as employees and thus do not fit the narrow
`spectrum which the public concern test is meant to identify.
`
`
`
`
`12
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`

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`Thus, we conclude that the public concern test does not apply when public
`employee nonverbal protected expression does not occur at work and is not about
`work.
`
`Id. at 1564.
`
`The Tenth Circuit announced, “[t]he alternative test should be whether the speech involved
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`is ‘protected expression.’ If the speech involved is protected expression, then the second half of
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`the existing Pickering test . . . should be applied.” Id. at 1564–65. Other courts have applied the
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`Flanagan test to public employee speech which occurs out of work and is unrelated to work. See,
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`e.g., Rothschild v. Bd. Of Educ. of City of Buffalo, 778 F. Supp. 642, 654–55 (W.D.N.Y. Dec. 5,
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`1991) (Teachers were disciplined for their participation in the production of a videotape filmed at
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`a public school outside of work hours. The Rothschild Court applied the Tenth Circuit’s approach
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`in Flanagan and held the speech was protected); Hawkins v. Dep’t of Pub. Safety and Corr.
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`Services, 602 A.2d 712, 719–20 (Md. 1992) (considering Flanagan while analyzing a prison
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`guard’s abusive words and conduct towards a private citizen while guard was off duty, away from
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`the prison and out of uniform); Melzer v. Bd. of Educ. of City Sch. Dist. of City of New York, 196
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`F. Supp. 2d 229, 250 (E.D. N.Y. Feb. 26, 2002) (“there is no province in trying to discern if a
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`protected expression or association is in regard to a matter of public concern if it is not about work
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`or related to work”).
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`The Court recognizes that Flanagan’s holding relates to nonverbal expression and the
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`Tenth Circuit has declined to extend Flanagan to an employee’s out of work verbal expression.
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`See Leverington v. City of Colorado Springs, 643 F.3d 719 (10th Cir. 2011). In Leverington, a
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`nurse was terminated after she told a police officer who issued her a speeding ticket that she “hoped
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`she never had him as a patient.” Id. at 722. The Tenth Circuit declined to apply Flanagan stating,
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`the nurse’s “statement was clearly verbal expression, it related to her work, and it potentially had
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`Case 4:19-cv-00538-WPJ-CDL Document 30 Filed in USDC ND/OK on 11/21/23 Page 14 of 29
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`an impact upon her employer. Unlike the difficulty in Flanagan in determining what ‘comment’
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`was being made . . ., here we have no difficulty in evaluating Ms. Leverington’s statement. Id. at
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`725. Based upon the facts of this case, the Court considers Flanagan’s protected expression test to
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`be the more appropriate test to apply.5 Plaintiff clearly did not speak as an employee, his speech
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`did not concern work, and his speech did not occur at work. Flanagan, 890 F.2d at 1564.
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`Plaintiff alleges that two, but possibly three, Facebook posts formed the basis of his
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`termination: the “Trump Post,” the “Blue Lives Matter Post,” and the November 15, 2015, post.
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`See Doc. 6, at ⁋⁋ 72, 90. Therefore, the Court will only analyze whether these three Facebook posts
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`are protected expression. Virginia v. Black, 538 U.S. 343, 358 (2003) (“The First Amendment
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`affords protection to symbolic or expressive conduct as well as to actual speech.”).
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`1.
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`August 6, 2015, Trump Post
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`The first post at issue is an image of then-presidential candidate Donald Trump riding a
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`lion with a confederate flag in the background, posted August 6, 2015. See Doc. 6, at ⁋ 72.A.;
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`Table 1. “[S]peech on public issues occupies the highest rung of the hierarchy of First Amendment
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`values, and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983) (internal
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`quotation marks omitted). Political speech is “at the core of protected speech.” Bass v. Richards,
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`308 F.3d 1081, 1089 (10th Cir. 2002). The August 6, 2015, post of Donald Trump is a protected
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`expression of political speech.
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`2.
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`March 24, 2016, Blue Lives Matter Post
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`The next post is an image allegedly created by American veteran Chris Kyle superimposed
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`over the American Flag with a thin blue line—the image associated with the “Blue Lives Matter”
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`5 The Court acknowledges the Defendant City contends the public concern test is the appropriate test to apply. See
`Doc. 13, at 11; Doc. 20, at 3. Regardless, both parties concede either test is met (for the three posts at issue) and both
`proceed to Pickering balancing. See Doc. 13, at 11; Doc. 17, at 16.
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`Case 4:19-cv-00538-WPJ-CDL Document 30 Filed in USDC ND/OK on 11/21/23 Page 15 of 29
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`movement. Doc. 6, at ⁋ 72.C.; Table 1. The post contains the words, “despite what your momma
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`told you . . . violence does solve problems.” Id. Recently, the Honorable J. Nicholas Ranjan of the
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`District Court of the Western District of Pennsylvania acknowledged that political or social-protest
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`speech—such as employees wearing facemasks that displayed the slogan “Black Lives Matter”—
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`was social speech which struck “at the heart of the most valuable speech protected by the First
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`Amendment.” Amalgamated Transit Union Local 85 v. Port Auth. of Alleghany Cnty., 513 F. Supp.
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`3d 593, 612 (W.D. Pa. Jan. 19, 2021). Just as speech concerning the Black Lives Matter movement
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`is protected social speech, so is speech promoting the Blue Lives Matter movement.
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`3.
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`November 15, 2015, Post
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`Lastly, Plaintiff posted an image with the text, “Pledge to my family, flag and country when
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`the day comes I will fight to my last breath, before I submit to Islam.” Doc. 6, at ⁋ 72.B.; Table 1.
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`“The hallmark of the protection of free speech is to allow ‘free trade in ideas’—even ideas that the
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`overwhelming majority of people might find distasteful or discomforting.” Virginia v. Black, 538
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`U.S. 343, 358 (2003) (citing Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,
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`dissenting)). There are certain well-defined and narrowly limited classes of speech which are not
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`afforded Constitutional protection. See id. Speech which incites imminent lawless action, true
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`threats and fighting words are not protected. Id. at 359. Speech cannot be curtailed “simply because
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`the speaker’s message may be offensive to his audience.” Hill v. Colorado, 530 U.S. 703, 716
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`(2000). The Court does not consider this post to be one of the exceptions to Constitutional
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`protection. Fighting words are those “personally abusive epithets which, when addressed to the
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`ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent
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`reaction.” Virginia v. Black, 538 U.S. at 359. While this post contemplates fighting, the Court does
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`not find it was inherently likely to provoke a violent reaction. Nor does the Court consider the post
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`to incite imminent lawless action or constitute a true threat. For these reasons, the November 15,
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`2015, post is protected expression.
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`iii.
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`Balancing the Parties’ Interests
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`Having concluded that the Facebook posts at issue are protected expression, the Court must
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`now proceed to the third element of the Garcetti/Pickering test. The Defendant City contends it
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`have a superior interest in maintaining the public’s confidence, Plaintiff’s Facebook posts did
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`cause a “significant actual disruption,” and Plaintiff’s Facebook posts “harmed the public’s trust
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`in Plaintiff as a Tulsa Police Officer in that he would treat all members of the community fairly.”
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`Doc. 13, at 17 (emphasis in original). Conversely, Plaintiff argues the City did not have a