98 F.

3d 581
12 IER Cases 252

Catherine L. WITHIAM, Plaintiff-Appellee,

v.
BAPTIST HEALTH CARE OF OKLAHOMA, INC.; Roland
Gee,
Defendants-Appellants,
and
Logan Hospital and Medical Center Authority; Joel Tate;
Kenny Davis, Defendants.
Catherine L. WITHIAM, Plaintiff-Appellee,
v.
BAPTIST HEALTH CARE OF OKLAHOMA, INC.; Logan
Hospital and
Medical Center Authority; Roland Gee; Kenny
Davis, Defendants,
and
Joel Tate, Defendant-Appellant.
Catherine L. WITHIAM, Plaintiff-Appellee,
v.
BAPTIST HEALTH CARE OF OKLAHOMA, INC.; Roland
Gee,
Defendants-Appellants,
and
Logan Hospital and Medical Center Authority; Joel Tate;
Kenny Davis, Defendants.
Nos. 95-6265, 95-6313 and 95-6440.

United States Court of Appeals,

Tenth Circuit.
Oct. 18, 1996.

David L. Kearney, Gable & Gotwals, Edmond, OK, for Plaintiff-Appellee.

Jack S. Dawson, James A. Scimeca, and Leslie L. Lynch, Miller,

Dollarhide, Dawson, & Shaw, Oklahoma City, OK, for DefendantsAppellants.
Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.

Plaintiff's civil rights claims were premised on an alleged retaliatory

termination by her employer, a hospital management company. The primary
question presented is whether an employee's public endorsement of a particular
company to manage a public hospital constitutes speech entitled to First
Amendment protection. The speech in question is not of sufficient public
concern to warrant such protection as the premise of a retaliatory termination
claim under 42 U.S.C. 1983.

These three appeals arise out of the same facts.1 Plaintiff Catherine L. Withiam
was employed from 1972 until mid-1993 by a state public-trust hospital, now
known as Logan Hospital and Medical Center. At the time of her discharge,
plaintiff had been Director of Personnel Services for fifteen years. The hospital
was managed by Quorum Healthcare Resources, Inc. until 1992, when the
Logan Hospital and Medical Center Authority, through its Board of Trustees,
changed management companies. On July 23, 1992, the Authority scheduled a
meeting of the trustees to discuss the change, which at that time was a mere
proposal. At this meeting, plaintiff and ten other hospital managers presented a
signed resolution which stated:

3 behalf of the managers listed below, representing their respective departments,

On
let it be resolved that we the undersigned voice our opinion in approval of retaining
the current management contract with Quorum Health Care Resources, Inc.
4 have signed this document freely and at our own will to provide the Board of
We
Trustees of Logan Hospital and Medical Center, our input for the future growth and
stability of the hospital.
5Dated this July 22, 1992.
6

3 Appellants' App. (Nos.95-6265, 95-6313) at 895.

The Authority decided to contract instead with defendant Baptist Healthcare of

Oklahoma, Inc. (BHO) to manage the hospital. BHO named defendant Joel

Tate interim administrator; he served for approximately ninety days. Defendant

Roland Gee took over as administrator on October 1, 1992, and Mr. Tate left
shortly thereafter. Mr. Gee terminated plaintiff in July 1993.
8

Plaintiff sued several defendants on a number of theories, but only two claims
went to trial: retaliatory termination for exercising her First Amendment right to
free speech in violation of 42 U.S.C. 1983 and Oklahoma public policy.
While defendants asserted that the termination resulted from a reduction in
force, a jury found in favor of plaintiff and against defendants BHO and Gee on
both claims and awarded plaintiff compensatory damages of $226,279.49. The
jury also awarded punitive damages of $25,000 against BHO and $1.00 against
Gee. The district court awarded plaintiff her attorney's fees. The jury found
against plaintiff on her claims against defendant Tate. The district court denied
Tate's subsequent motion for attorney's fees. This court has jurisdiction over all
three appeals under 28 U.S.C. 1291.

No. 95-6265
9

In No. 95-6265, defendants BHO and Gee argue that: (1) plaintiff's acts of
signing and presenting the resolution to the hospital trustees are not protected
speech under the First Amendment; (2) they are not state actors for the
purposes of 1983; (3) Burk v. K-Mart Corp., 770 P.2d 24 (Okla.1989) has not
been expanded to include a public policy exception to employment-at-will on
the basis of protected speech; and (4) the district court erred in allowing the
jury to award punitive damages. Resolution of the first of these issues is
dispositive.

10

Supreme Court cases establish the decisional framework. First, the employee
must show that her speech involves a matter of public concern. Connick v.
Myers, 461 U.S. 138, 146-47, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983).
Second, if the employee's expression meets this threshold requirement, the
employee must then show that her interest in the particular expression
outweighs the employer's interest in efficiently performing its public service.
Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20
L.Ed.2d 811 (1968). Third, the employee must demonstrate that her speech was
a substantial or motivating factor in the employer's adverse employment action.
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct.
568, 576, 50 L.Ed.2d 471 (1977).

11

Plaintiff's expression of support for management in the resolution fails to meet

the threshold requirement of constituting a matter of sufficient public concern
to warrant First Amendment protection. Speech involves a matter of public

concern when it can "be fairly considered as relating to any matter of political,
social, or other concern to the community." Connick, 461 U.S. at 146, 103 S.Ct.
at 1690. It is not enough that the subject matter be of public concern; the
content of the expression must also be of public concern. Wilson v. City of
Littleton, 732 F.2d 765, 769 (10th Cir.1984). The content is the "crux of the
public concern content inquiry." Wren v. Spurlock, 798 F.2d 1313, 1317 n. 1
(10th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 145
(1987). General public interest is not the equivalent of public concern for First
Amendment purposes. Koch v. City of Hutchinson, 847 F.2d 1436, 1445 (10th
Cir.1988). To be protected speech, the expression must "sufficiently inform the
issue as to be helpful to the public in evaluating the conduct of government."
Wilson, 732 F.2d at 768.
12

The resolution plaintiff and the other managers signed and presented to the
hospital's trustees expressed nothing more than the bare opinion that the thencurrent management company should be retained. The resolution offered no
reasons or explanation at all for the opinion it expressed. Although the
resolution was presented at a trustees' meeting, it simply offered nothing at all
to inform the public about the management of the hospital. It was neither an
expose of government ineptitude, waste or corruption nor a recitation of
reasons, arguments or facts supporting retention of contract management. The
resolution was but a bald, unadorned and nonspecific endorsement. As such, it
did not involve a matter of public concern warranting First Amendment
protection.

13

Because the resolution is undeserving of First Amendment protection, we

reverse the judgment based on the jury verdict. Plaintiff's failure to present
evidence of any protected expression also undermines the very premise of her
Oklahoma public policy claim. It is therefore unnecessary to decide whether
defendants BHO and Gee are state actors for purposes of 1983, or whether
they are liable for punitive damages.

No. 95-6440
14

In No. 95-6440, defendants BHO and Gee appeal from the district court's award
under 42 U.S.C. 1988 of attorney's fees to plaintiff as the prevailing party on
her claims against them. 3 Appellants' App. at 894. Because we reverse on the
merits of plaintiff's claims, we also reverse the award of attorney's fees to
plaintiff.

No. 95-6313

15

In No. 95-6313, defendant Joel Tate contends the district court abused its
discretion in denying his motion for attorney's fees under 42 U.S.C. 1988(b)
after he successfully defended plaintiff's claims against him. We review the
denial of a request for attorney's fees under 1988 for abuse of discretion.
Operating Eng'rs Local Union No. 3 v. Bohn, 737 F.2d 860, 863 (10th
Cir.1984). "Underlying findings are reviewed under the clearly erroneous
standard, while the district court's statutory interpretation and legal analysis are
subject to de novo review." Carter v. Sedgwick County, 36 F.3d 952, 956 (10th
Cir.1994).

16

Under 1988(b), the district court may award fees only if plaintiff's claims
were " 'frivolous, unreasonable, or without foundation, even though not brought
in subjective bad faith.' " Figures v. Board of Pub. Utils., 967 F.2d 357, 362
(10th Cir.1992) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978)). Without making any specific
factual findings, the district court concluded that plaintiff's claims against
defendant were not frivolous, unreasonable, or without foundation. 3
Appellants' App. (Nos.95-6265, 95-6313) at 827-28.

17

Tate argues in his Brief that it is Withiam's failure to present evidence showing
Tate was causally connected to her termination2 which made Withiam's claim
frivolous, unreasonable, or without foundation. So far as this court is able to
discern, however, Tate never presented that argument to the district court.

18

Based upon the record provided us, 3 the only defense motions which
specifically referenced Tate as a defendant were his motion to dismiss plaintiff's
amended complaint and his motion for attorney's fees. Tate's motion to dismiss
plaintiff's amended complaint addressed jurisdictional and state actor issues
common to all defendants. 1 Appellants' App. (Nos.95-6265, 95-6313) at 72-75.
Tate's motion for attorney's fees simply argued that he was entitled to fees and
costs under 1988(b) because he was the prevailing party. 3 Appellants' App.
(Nos.95-6265, 95-6313) at 767-801. The other motions presented by the
defendants again dealt only with issues common to all defendants. None of the
defense motions made specific mention of the argument that Withiam failed to
present any evidence showing Tate was causally connected to her termination.

19

In sum, as reflected in the record presented to this court, Tate never argued to
the district court that Withiam's claim was frivolous, unreasonable, or without
foundation based on a failure of proof of causation.4 Thus, because that
argument was never made below, this court cannot find the district court
abused its discretion in denying fees on that ground. Walker v. Mather (In re

Walker), 959 F.2d 894, 896 (10th Cir.1992). We therefore affirm the district
court's conclusion that Tate is not entitled to an award of attorney's fees.
CONCLUSION
20

In No. 95-6313, the judgment of the United States District Court for the
Western District of Oklahoma is AFFIRMED. In Nos. 95-6265 and 95-6440,
the judgment is REVERSED.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of these appeals. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cases are
therefore ordered submitted without oral argument

Tate ended his employment at the hospital approximately nine months before
Withiam was terminated

Tate's motion for directed verdict was not submitted as part of the record

In fact, as indicated above, Tate never argued that Withiam's case was
frivolous, unreasonable, or without foundation for any reason. Instead, he
simply asserted that he was entitled to his fees as a prevailing party