FILED
                                                                     United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                          Tenth Circuit

                           FOR THE TENTH CIRCUIT                          February 13, 2019
                       _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 CRAIG HEDQUIST and HEDQUIST
 CONSTRUCTION, INC., a Wyoming
 Corporation,

              Plaintiffs - Appellants/Cross-
              Appellees,

 v.                                                   Nos. 17-8036 & 17-8042
                                                   (D.C. No. 1:14-CV-00045-ABJ)
 ANDREW BEAMER,                                               (D. Wyo.)

              Defendant - Appellee/Cross-
              Appellant

 and

 JOHN PATTERSON and THE CITY OF
 CASPER,

              Defendants - Appellees,

                       _________________________________

                            ORDER AND JUDGMENT*


Before LUCERO, HOLMES, and EID, Circuit Judges.


       From January 2013 until July 2015, Craig Hedquist (Hedquist) was a member of

the Casper, Wyoming City Council. During his time on the Council, Hedquist developed


       *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
10th Circuit Rule 32.1.
contentious relationships with several City employees, including Defendants John

Patterson (then the City Manager of Casper) and Andrew Beamer (then a City Engineer).

After resigning from the City Council, Hedquist brought this action against Patterson,

Beamer, and the City of Casper (Defendants) under 42 U.S.C. § 1983, claiming

Defendants retaliated against him for exercising his First Amendment rights. He alleges

that Patterson committed many forms of retaliation, including instigating investigations

into Hedquist’s business dealings and filing a petition to have Hedquist removed from the

City Council.

       Hedquist is also the principal owner of Hedquist Construction, Inc. (HCI), which

has performed construction projects for the City. HCI joined this action and alleges that

Beamer retaliated against it by influencing the City into labeling it a non-responsible

bidder, which resulted in the City refusing to award HCI contracts despite being the

lowest bidder. Both Hedquist and HCI (Plaintiffs) allege that these adverse actions were

in retaliation to Hedquist identifying and speaking out against inefficient and incompetent

practices by the City and its officials.

       After extensive discovery, Defendants moved for summary judgment. On

Hedquist’s claim, the district court granted summary judgment in favor of Defendants

Patterson and the City of Casper. On HCI’s claim, the court granted summary judgment

in favor of Beamer and the City of Casper. The district court also found that Patterson

was entitled to qualified immunity, while Beamer was not.

       Plaintiffs appealed to this court, and Beamer filed a cross-appeal on the sole issue

of his entitlement to qualified immunity. Because we conclude that neither plaintiff has


                                             2
demonstrated that protected speech motivated Defendants’ alleged adverse actions, we

affirm. We also affirm the district court’s denial of Plaintiffs’ discovery motions.1

                                             I.

                                             A.

       Hedquist is a principal of HCI, a long-time bidder and contractor on road and

infrastructure projects in the City of Casper. In 2012, Hedquist announced his candidacy

to represent Ward II on the nine-member Casper City Council. He announced his

campaign by publishing a letter in the Casper Star Tribune in the summer of 2012. The

letter was critical of “the inefficiencies, policies and seeming lack of ‘common sense’ in

our government.” Vol. 2 at 269. Hedquist won his election and took office on January 2,

2013. HCI continued to work on City projects while Hedquist served as a member of the

City Council.

       Defendant John Patterson was also a City Councilmember and worked as the City

Manager from August 1, 2011 until October 30, 2015. Defendant Andrew Beamer

worked as a City Engineer during the controversies of this case. As a City Engineer,

Beamer managed capital construction projects, visited jobsites, and participated in

construction-related meetings.

       Consistent with his campaign promises, Hedquist discussed with City employees

how to more efficiently run City construction projects. In August 2012, Hedquist met



       1
         We do not reach any questions of qualified immunity, including the issue
raised in Beamer’s cross-appeal, because we find Hedquist and HCI have presented
insufficient evidence to demonstrate the violation of a constitutional right.

                                             3
with Patterson and other City officials, during which he accused City employees of

incompetently managing construction projects. Vol. 18 at 3028. In December 2012

(after Hedquist won the election but before he took office), Hedquist, along with several

other contractors, met with Patterson and his assistant Pete Meyers to discuss

construction projects in and around the City. At this meeting, Hedquist was critical of

allegedly inefficient actions taken by the City. He and the other contractors suggested the

City should outsource more work because private firms are generally cheaper and more

effective. 

On December 28, Patterson emailed Hedquist to thank him for

calling the meeting and summarize what was discussed. He noted that “[t]he meeting

went well and there was generally a positive view of the working relationship with our

local contractors.” 

       In February 2013, shortly after taking office, Hedquist requested job cost data for

the prior three years of street milling performed by the City with its own equipment and

personnel. Vol. 26 at 5000. Patterson assigned the task to newly-hired Public Services

Director Rick Harrah, 

multiple flaws in the City’s tracking of

operations costs, Vol. 19 at 3193–94. In Harrah’s report to Patterson, he stated that “[i]t

is abundantly clear that I need to make changes to our current cost tracking system. It is

completely reasonable for a citizen or city councilmember to expect accountability from

their municipal workforce, and we should be able to easily provide this information when

requested.” 

Harrah met with Hedquist to review the cost data but claims that

the cost-accounting flaws were not discussed then or in the future. Vol. 26 at 5002.




                                             4
       During 2013, HCI was the contractor on four public works projects for the City.

At a progress meeting for the project known as “Indian Paintbrush” in June 2013,

Hedquist met with Harrah, Beamer, and Assistant City Engineer Scott Baxter. Vol. 12 at

1649. They discussed how much concrete should be replaced on the “curbwalk.” At the

meeting, Hedquist informed the others that he was speaking both as the principal of HCI

and as a City Council member. Beamer developed concerns that Hedquist’s dual status

as Councilmember and contractor was a conflict of interest, and he started bringing a

recording device to future meetings and conversations with Hedquist.

       On August 27, 2013, Hedquist attended a meeting with his attorney, Michael

Lansing; Patterson; Mayor Kenyne Schlager; and City Attorney Bill Luben. Vol. 12

at 1744. At the meeting, Hedquist complained about Beamer interfering in HCI’s

performance of City contracts. 

was displeased about delayed payments

of over $750,000 that the City owed HCI. 

the delay, and

a “pre-writ” check was prepared and deposited the next day. 

Vol. 2 at

275.

       On August 28, Hedquist attended a progress meeting about a construction

project with Beamer, other City employees, and the project manager (a company

called Civil Engineering Professionals, Inc., or CEPI). Beamer recorded the meeting,

which took place at the jobsite. Attendees discussed the status of the construction

project. At one point, Beamer suggested opening one of the streets closed for

construction, and Hedquist responded:

       Hedquist:    You guys going to start paying on time?


                                            5
      Beamer:       We’ve already had this discussion, but . . .
      Hedquist:     Oh no. You f***ing going to stand up, bi***? Are you going to
                    start paying?
      Beamer:       What did you say?
      Hedquist:     You heard me.
      Beamer:       I did hear you.
      Hedquist:     Yeah. Yeah. The only part of the contract that you even
                    comprehend is the side that I have to –
      Beamer:       That’s not true, Craig.
      Hedquist:     Yeah.
      Beamer:       But, you know, we can have this discussion another time.
      Hedquist:     We will have this discussion, I promise you.
Vol. 16 at 2603.

      Later that day, Beamer played the recording of the exchange for Harrah, his

supervisor. The next day, Harrah emailed Patterson expressing his outrage over

Hedquist’s actions and mentioning other instances of Hedquist using similarly aggressive

and derogatory language with City employees. Vol. 12 at 1623–26. Harrah also accused

Hedquist of using his position on the City Council to get away with this behavior. 

a workplace violence complaint against Hedquist on August 29,

2013. Vol. 16 at 2591. Beamer indicated on the written complaint that, as a result of the

altercation, HCI should “no longer be considered a responsible bidder on future projects.”

Vol. 19 at 3369. The attorney hired to investigate the complaint, Kathleen Dixon,

interviewed witnesses to the incident, including Beamer and Hedquist, and determined

that the workplace violence complaint was substantiated. Vol. 16 at 2609. She



                                              6
concluded that the combination of Hedquist’s language, facial expressions, and physical

movements indicated that he was threatening Beamer. 

to the workplace violence investigation, the City Council decided

to investigate the possible conflict of interest arising from Hedquist’s position on the

City Council and simultaneous involvement with HCI. On September 27, 2013, a

Notice of Contested Case Rights and Procedures, signed by Mayor Schlager, was

served on Hedquist. Vol. 12 at 1654–59. The Notice listed the state statutes and

Casper city ordinances that Hedquist’s conduct potentially violated. 

Wes Reeves served as counsel for the City Manager’s office for this

investigation. Vol. 26 at 4838. On December 10, 2013, Reeves determined there

was “clear and convincing evidence” that Hedquist had violated ethics and conflict of

interest laws. Vol. 12 at 1661.

      On January 17, 2014, Reeves and Patterson filed a Petition for Removal from

Office or Other Remedies and Notice of Contested Case Rights and Procedures

concerning the conflict of interest and workplace violence allegations. Vol. 12 at

1666–74. The Petition was eventually dismissed, but on April 29, 2014, the City

Council held an informal hearing about whether Hedquist’s conduct constituted a

conflict of interest. The meeting included testimony by Beamer, Harrah, and others

who claimed that Hedquist was abusing his position on the Council and using his

influence to enrich HCI. Vol. 26 at 4844–5030. Neither Hedquist nor his attorneys

attended the meeting. On May 15, 2014, the City Council voted to request that

Hedquist resign as City Councilman based on allegations of him violating the City’s


                                           7
code of ethics. 

Though Hedquist declined to resign at that time, he

eventually resigned in July 2015. Vol. 2 at 289.

       HCI’s claims against Defendants center around four contracts in progress during

2014 that had run past their contractual due date. The projects in dispute were mediated

pursuant to the contracts’ terms with the assistance of representatives of CEPI. Vol. 13 at

1834–37. HCI agreed to pay liquidated damages as part of the settlement. 

that the City Council opportunistically used these mediations as pretext to label

HCI a non-responsible bidder. Under Wyoming law, city public works projects shall be

given “to the lowest bidder who shall be determined qualified and responsible in the sole

discretion of the governing body.” Wyo. Stat. § 15-1-113(c). In 2015, HCI submitted the

lowest bids for five public works contracts with the City of Casper. The City Public

Works Department recommended the contracts go to the second-lowest bidder for each

project instead of HCI, citing the four previous projects that went to mediation as

justification. Vol. 13 at 1914–17. HCI claims this was retaliation and cost the City over

$800,000.

                                             B.

       Hedquist filed an initial complaint on February 27, 2014 and, together with HCI,

filed a second amended complaint on September 30, 2015. The second amended

complaint alleged two causes of action, both arising under 42 U.S.C. § 1983. The first

was brought by Hedquist against Councilman Patterson, individually and in his official

capacity, and alleged that Patterson retaliated against his protected speech when

Patterson: (1) instigated the workplace violence and conflict of interest investigations into


                                             8
Hedquist; and (2) initiated proceedings to have Hedquist removed from the City Council.

Vol. 2 at 290–91. The second cause of action was brought by HCI against City Engineer

Beamer, individually, and the City of Casper, alleging that Beamer and the City retaliated

against HCI’s protected speech by labeling HCI a non-responsible bidder with the

intention of denying HCI public works contracts. 

       The parties commenced discovery. Both the discovery cutoff date and the trial

date were repeatedly pushed back. Plaintiffs filed three motions to compel further

discovery during 2016, all of which the district court denied.

       On August 26, 2016, all parties filed motions for summary judgment. The

Defendants’ motions all generally attacked the sufficiency of the evidence as it related to

the elements of a First Amendment retaliation claim. They argued that Plaintiffs’ speech

was not protected and that it was not a motivating factor in the alleged adverse actions.

Beamer and Patterson also raised the affirmative defense of qualified immunity. Dist. Ct.

Op. (Op.) at 15–17.

       On April 14, 2017, the district court entered an order granting summary judgment

for Defendants on both Hedquist’s and HCI’s claims. Op. at 52. The district court held

that Hedquist’s speech was not made pursuant to his official duties as a public employee.

Next, it concluded that Hedquist’s speech as a City Councilman involved

matters of public concern, 

while speech by HCI did not, 

The court

then determined that both Plaintiffs failed to produce evidence that protected speech was

a substantial or motivating factor in the alleged adverse actions taken against them. 

41. The court also granted qualified immunity for Patterson but denied it for Beamer. 

47.

       Plaintiffs appeal the district court’s rulings. They argue that the court was correct

to find that Hedquist’s speech as a City Councilman was of public concern, but erred in

holding that the speech was not a substantial or motivating factor in the alleged

retaliation. Plaintiffs also assert that the district court erred in finding that HCI’s speech

was not of public concern. Plaintiffs seek reversal of the district court’s grant of qualified

immunity for Patterson. Finally, Plaintiffs contend that the district court abused its

discretion in denying their discovery motions.

                                              II.

       This court reviews “a grant of summary judgment de novo, drawing all reasonable

inferences and resolving all factual disputes in favor of the non-moving party.” Yousuf v.

Cohlmia, 

, 37 (10th Cir. 2014). “Summary judgment is warranted only if

‘there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.’” 

R. Civ. P. 56(a)). This court conducts its review

from the “perspective of the district court at the time it made its ruling, ordinarily limiting

our review to the materials adequately brought to the attention of the district court by the

parties.” Fye v. Okla. Corp. Comm’n, 

, 1223 (10th Cir. 2008) (quotation

omitted).

       To survive summary judgment, the nonmoving party must “do more than simply

show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 

, 586 (1986). Rather, the nonmoving


                                              10
party must “make a showing sufficient to establish the existence of [every] element

essential to that party’s case, and on which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 

, 322 (1986).

                                             III.

       “[A] public employee does not relinquish First Amendment rights to comment on

matters of public interest by virtue of government employment.” Connick v. Myers, 

, 140 (1983). “[T]he First Amendment protects a public employee’s right, in

certain circumstances, to speak as a citizen addressing matters of public concern.”

Garcetti v. Ceballos, 

, 417 (2006). However, the government has a

“countervailing interest in controlling the operation of its workplaces.” Lane v. Franks,

, 236 (2014). “[T]he interests of public employees in commenting on

matters of public concern must be balanced with the employer’s interests ‘in promoting

the efficiency of the public services it performs through its employees.’” Leverington v.

City of Colorado Springs, 

, 723 (10th Cir. 2011) (quoting Pickering v. Bd. of

Educ., 

, 568 (1968)).

       This court employs one of two tests when analyzing a First Amendment retaliation

claim. The Garcetti/Pickering test applies when the free speech claim is based on

retaliation by a government employer. See 

This test comprises five elements:

       (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.


                                             11
Trant v. Oklahoma, 

, 1165 (10th Cir. 2014) (citation omitted). Claims by

independent contractors are also subject to the Garcetti/Pickering analysis. Bd. of Cty.

Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 

, 673 (1996).

       This court has outlined an alternative test “to be used in free-speech retaliation

claims against ‘a defendant who is not the plaintiff’s employer and when there is no

contractual relationship between them.’” 

(quoting Worrell

v. Henry, 

, 1212 (10th Cir. 2000)). The Worrell test requires proof of three

factors to support a case of retaliation:

       (1) that the plaintiff was engaged in constitutionally protected activity; (2)
       that the defendant’s actions caused the plaintiff to suffer an injury that would
       chill a person of ordinary firmness from continuing to engage in that activity;
       and (3) that the defendant’s adverse action was substantially motivated as a
       response to the plaintiff’s exercise of constitutionally protected conduct.

(quotation omitted). In deciding which test to apply, “the

relevant inquiry” is “the extent to which [the defendant] had authority over [the

plaintiff’s] employment situation.” 

n.8.

       The district court applied the Garcetti/Pickering test to all of Plaintiffs’ claims, but

the parties now submit that the Worrell test should apply to some or all of the claims.

Both tests require proof that the protected speech “motivated”—or caused—the adverse

action. However, each test frames the motivation requirement slightly differently: In the

Worrell test, the adverse action must be substantially motivated by the protected speech.

Under Garcetti/Pickering, protected speech must be merely a motivation. However, this

court has held that, even under Garcetti/Pickering, “the employee must show the

protected speech played a substantial part in the employer’s decision to adversely alter


                                             12
the employee’s conditions of employment.” Maestas v. Segura, 

, 1188

(10th Cir. 2005) (emphasis in original). Accordingly, we conclude that there is no

meaningful difference in the quantum of motivation required to prove causation in the

two frameworks. See 

prong is a factual issue typically decided by a jury. 

. However, summary judgment is appropriate when there “is no

evidence in the record from which a trier of fact could reasonably conclude the

[protected speech] was a motivating factor in [the plaintiff’s] termination.” Cypert v.

Indep. Sch. Dist. No. I-050 of Osage Cty., 

, 484 (10th Cir. 2011)

(brackets in original) (quotation omitted).

       To withstand summary judgment at [the causation step], therefore, an
       employee must produce evidence linking the employer’s action to the
       employee’s speech. Speculation or hunches amidst rumor and innuendo
       will not suffice. . . . Adverse action in close proximity to protected
       speech may warrant an inference of retaliatory motive. But temporal
       proximity is insufficient, without more, to establish such speech as a
       substantial motivating factor in an adverse employment decision. . . .
       [E]vidence such as a long delay between the employee’s speech and
       challenged conduct, or evidence of intervening events, tend to undermine
       any inference of retaliatory motive and weaken the causal link.

–89 (internal citations, quotation, and alterations omitted).

“[E]vidence of causation may include evidence the employer expressed opposition to the

employee’s speech, or evidence the speech implicated the employer in serious

misconduct or wrongdoing.” 

(internal citation omitted).




                                              13
                                             IV.

       For each of Plaintiffs’ claims, we conclude that they have failed to produce

evidence sufficient to show that protected speech motivated the alleged adverse action

against them. Plaintiffs have shown that the alleged adverse action followed protected

speech. But that evidence—by itself—does not support a First Amendment retaliation

claim. Rather, Plaintiffs must point to evidence in the record that protected speech

motivated those claimed injuries. See Butler v. City of Prairie Village, 

, 746

(10th Cir. 1999) (finding plaintiff had “not established that the speech was a motivating

factor in his termination” because “mere temporal proximity of [a p]laintiff’s protected

speech to his termination is insufficient, without more, to establish retaliatory motive.”).

We therefore affirm the district court’s dismissal of Plaintiffs’ First Amendment

retaliation claims.

                                             A.

       Starting with Hedquist’s claims of retaliation, the district court identified three

instances of protected speech by Hedquist: (1) the 2012 letter Hedquist published in the

Casper Star Tribune criticizing the City government’s “inefficiencies” and announcing

his Council candidacy (Vol. 2 at 269); (2) the August 2012 meeting with Patterson

regarding wasteful and inefficient City spending (Vol. 18 at 3028–29); and (3) an August

27, 2013 letter to Patterson requesting “job costing information for work the City of




                                             14
Casper performed on Aster Street this year,” (Vol. 19 at 3348). Op. at 34–35.2 The

district court then considered three alleged acts of retaliation against Hedquist: “a work

place investigation, a conflict of interest investigation, [and] removal proceedings . . . .”

Op. at 22.3 We conclude that each claim of retaliation fails because Hedquist has not

demonstrated “that the defendant’s adverse action was substantially motivated as a

response to the plaintiff’s exercise of constitutionally protected conduct.” 

(quotation omitted).

       In support of his claim that the district court erred, Hedquist merely asserts that,

“when viewing the evidence in the light most favorable to Hedquist[,] there is ample

evidence of a continuing course of retaliation related to Hedquist’s protected speech that

is more expansive than the investigations cited by the district court.” Aplt. Br. at 43.

Hedquist, though, fails to grapple at all with the question of motivation, claiming only

that the “motivating factor” question should have gone to the jury. 

assertion

that retaliation took place in response to protected speech is not sufficient to withstand

summary judgment, see 

–89, particularly in light of the non-

retaliatory rationales that exist for all of Defendants’ allegedly retaliatory conduct.




       2
         Defendants do not challenge the district court’s conclusion that Hedquist’s
speech on these three occasions qualifies as protected speech. See Aple. Br. at 23,
26.
       3
         On appeal, Hedquist broadens the list of allegedly retaliatory acts, raising
several specific instances of retaliation the district court did not consider. In keeping
with the general “principle that issues not passed upon below will not be considered
on appeal,” Lyons v. Jefferson Bank & Tr., 

, 722 (10th Cir. 1993), our
review is limited to only those instances of retaliation discussed by the district court.

                                              15
       The first instance of alleged retaliation was the workplace violence investigation,

which began in September 2013. The investigation immediately followed Hedquist’s

actions toward Beamer at the construction site in August 2013. During the altercation,

Hedquist brought up the City’s delinquent payment to HCI and said, “You f***ing going

to stand up, bi***? Are you going to start paying?” Vol. 16 at 2603. Beamer had

recorded the exchange. The next day, Beamer filed a workplace violence complaint. An

independent attorney, Kathleen Dixon, investigated the complaint and determined, after

reviewing the recording and statements from other witnesses, that Hedquist had

threatened Beamer with physical violence. Vol. 16 at 2609. On appeal, Hedquist fails to

point to any evidence in the record indicating that the allegedly retaliatory workplace

violence investigation was motivated by anything other than Hedquist’s threats of

violence toward Beamer at the construction site.

       Hedquist’s claims of retaliation based on the conflict of interest investigation

similarly fail. Hedquist has failed to point to any evidence suggesting protected speech

was a substantial motivating factor in the initiation of that investigation. The summary

memorandum prepared by independent attorney Wes Reeves clarifies the basis for the

investigation. First, the report notes that Hedquist served as a council member at the

same time that his construction company “was obligated to perform several significant

construction projects for the City . . . .” Vol. 12 at 1661. While Hedquist was initially

permitted to act as both a council member and city contractor, the memorandum details

various examples of “[t]he difficulties created by Mr. Hedquist’s conflicting loyalties,”

including “routinely us[ing] his office to skip the chain of command to obtain access to


                                             16
the City Manager, Department heads and staff for the purpose of arguing for the interest

of his company.” Vol. 12 at 1662–63. Ultimately, Reeves determined that there was

“clear and convincing evidence” of Hedquist’s conflict of interest. 

       It is true Reeves’s memorandum also referenced Hedquist’s August 27, 2013 letter

requesting job cost information for a construction project as a possible example of

Hedquist seeking “an advantage in future bidding work.” 

As noted above,

the district court identified this letter as protected speech because it “touche[d] on

government efficiency.” Op. at 34. But again, Hedquist does not provide any evidence

indicating the conflict of interest investigation, including Reeves’s memorandum, was

motivated by anything other than concerns about whether Hedquist could keep his dual

roles as City Councilman and owner of HCI separate.

       Hedquist’s claims of retaliation based on the initiation of the Petition for Removal

from Office also fail. As the district court found, and the record bears out, the Petition

for Removal filed by Patterson and Reeves was motivated by the results of the workplace

violence and conflict of interest investigations. Op. at 40–41. The Petition catalogued

several instances where Hedquist appeared to be improperly using his role as City

Councilman to benefit HCI. Vol. 12 at 1670–73. The Petition also referenced the August

28, 2013 altercation between Hedquist and Beamer as further grounds for removal. 

Because the cause of the Petition for Removal can be clearly traced to

unprotected conduct, and Hedquist has produced no evidence to the contrary, it provides

no basis for a retaliation claim.




                                              17
       Though the City’s Petition for Removal eventually failed, the City Council voted

to hold an informal hearing to determine whether Hedquist’s conduct constituted a

conflict of interest. Vol. 26 at 4926. Reeves, Beamer, and other City employees made

statements at the hearing expressing their frustrations with Hedquist’s actions as City

Councilman. Neither Hedquist nor his attorneys attended the hearing. 

We

conclude that the hearing does not constitute actionable retaliation for the same reasons

that the Petition for Removal is not actionable: Hedquist has produced no evidence that it

was motivated by protected speech, rather than concerns about the workplace violence

and conflict of interest investigations.

           In sum, Hedquist’s conclusory assertions and passing references to “ample

evidence” in the record are not enough to withstand summary judgment. Accordingly,

we affirm the district court’s dismissal of Hedquist’s retaliation claims against Patterson.

                                             B.

       We turn now to the other plaintiff in this case, HCI. HCI alleges that City

Engineer Andrew Beamer and the City of Casper retaliated against it by refusing to

award it construction contracts in 2015, despite being the lowest bidder.

       The district court concluded that none of the speech attributed to HCI was of

public concern and, therefore, was not protected under a First Amendment retaliation

claim.4 Op. at 32. The court considered “twenty-seven (27) separate instances in which


       4
         Because Hedquist is the principal and owner of HCI, most of the speech
attributed to HCI was in fact made by Hedquist. For our purposes, we consider any
speech made by Hedquist when he was acting on behalf of HCI as speech made by
HCI. See Glover v. Mabrey, 384 F. App’x 763, 766 (10th Cir. 2010) (unpublished)

                                             18
HCI alleged it had engaged in protected speech for which it was later retaliated against,”

and determined that each of those instances concerned “matters that relate to the contracts

with the City, being paid in accordance with those contracts, or other grievances the

company may have had with the City.” 

of the speech was

constitutionally protected, the district court dismissed HCI’s claim of retaliation. 

The district court did not reach the motivation prong of either the Worrell or

Garcetti/Pickering frameworks.

         HCI narrows its scope on appeal, arguing that two instances of speech were of

public concern and that the district court erred in holding otherwise. The instances

comprise: (1) the December 2012 meeting of contractors and City officials organized and

led by HCI; and (2) the June 2013 project meeting involving HCI and multiple

representatives of the City of Casper at the Indian Paintbrush construction site. Aplt. Br.

at 44.

         We need not consider whether HCI’s speech was of public concern. Assuming

both instances of HCI’s speech do qualify as touching on matters of public concern, we

find HCI has failed to demonstrate that either speech motivated Defendants’ alleged

retaliation. See Richison v. Ernest Grp., Inc., 

, 1130 (10th Cir. 2011)

(“[W]e may affirm on any basis supported by the record, even if it requires ruling on

arguments not reached by the district court . . . .”).




(statements made by the owner of a construction company were the basis of the
company’s First Amendment retaliation claim).

                                              19
       HCI asserts that the City retaliated against it by refusing to award it construction

contracts. Under Wyoming law, city public works projects shall be given “to the lowest

bidder who shall be determined qualified and responsible in the sole discretion of the

governing body.” Wyo. Stat. § 15-1-113(c). In 2015, HCI submitted the lowest bids for

five public works contracts with the City of Casper, but the City Public Works

Department recommended the contracts go to the second-lowest bidder for each project

instead of HCI. Vol. 13 at 1914–17. HCI alleges that Beamer influenced the City

Council into labeling HCI “non-responsible,” allowing the Council to award contracts to

other bidders.

       As with Hedquist’s claims of retaliation, HCI fails to show a causal connection

between HCI’s protected speech and the contracting dispute. First, as HCI

acknowledges, the alleged retaliation occurred more than two years after the December

2012 meeting. “[E]vidence such as a long delay between the employee’s speech and

challenged conduct . . . tend[s] to undermine any inference of retaliatory motive and

weaken the causal link.” 

.

       Further, HCI fails to address the “intervening events,” see 

readily

explain the allegedly adverse action. Specifically, HCI was awarded four contracts for

the City in 2014 and failed to satisfactorily perform them by their contractual due dates.

Vol. 13 at 1834–37. The City and HCI voluntarily went to mediation to settle those

contracts and agreed on a liquidated damages settlement, to be paid by HCI. 

City subsequently labeled HCI a non-responsible bidder, it cited the four 2014

contracts, not any protected speech by Hedquist or HCI. 

                                             20
       HCI’s attempts to explain these intervening events are unavailing. HCI first

claims—without any citation to the record—that the City’s actions were “unprecedented”

and that no other bidder has been subject to “scrutiny because of prior late performance

or assessment of liquidated damages.” Aplt Br. at 47–48. HCI also suggests that,

because the City labeled HCI a non-responsible bidder “the very first time” the

opportunity arose, Beamer, acting on behalf of the City, must have had that “intent” all

along. 

HCI, though, cannot support an inference of motivation with mere

“suspicion and hunches,” 

, and it has pointed to no evidence in

the record showing the City Council based its decision on speech made at either the

December 2012 or June 2013 meetings. Accordingly, we affirm the district court’s

dismissal of HCI’s claims against Beamer and the City.5

                                             V.

       Plaintiffs also appeal the district court’s denial of three motions to compel

discovery and a motion to supplement the dispositive motion record. The first motion

sought to compel discovery of documents that Defendants claimed were shielded by the

common interest privilege. The second motion asserted that the attorney/client privilege

did not apply to certain documents. And the third motion challenged the sufficiency of

responses to subpoenas served on City attorneys. The district court denied all three

motions. It also denied Plaintiffs’ motion to supplement the dispositive motion record


       5
        Because we conclude that both Hedquist and HCI’s retaliation claims against
Patterson and Beamer fail, we need not consider the district court’s rulings on
qualified immunity regarding those defendants, including any issues raised in
Beamer’s cross-appeal.

                                             21
with the transcript of the Rule 30(b)(6) deposition of the City of Casper, which was taken

53 days after the close of discovery.

       “We review a district court’s ruling denying a motion to compel for an abuse of

discretion.” Norton v. The City of Marietta, OK, 

, 1156 (10th Cir. 2005).

“Under this standard, we will not disturb a trial court’s decision absent a definite and firm

conviction that the lower court made a clear error of judgment or exceeded the bounds of

permissible choice in the circumstances.” 

       Plaintiffs contend that Defendants have “concealed” documents and information

from Plaintiffs via the assertion of privilege. However, Plaintiffs have not provided any

argument for how the district court abused its discretion in denying the motions. Their

sweeping assertion that “the district court’s reasoning was flawed,” Aplt. Br. at 55, does

not suffice. Bronson v. Swensen, 

, 1105 (10th Cir. 2007) (finding “cursory

statements, without supporting analysis and case law, fail to constitute the kind of

briefing that is necessary to avoid application of the forfeiture doctrine”). Therefore, we

affirm the district court’s denial of the motions to compel and motion to supplement the

dispositive motion record.

                                            VI.

       For the reasons stated above, we AFFIRM the district court’s summary judgment

orders in favor of Defendants. We also AFFIRM the orders denying Plaintiffs’ motions




                                             22
to compel discovery and its order denying Plaintiffs’ motion to supplement the

dispositive motion record.6



                                            Entered for the Court


                                            Allison H. Eid
                                            Circuit Judge




      6
       On August 25, 2017, an order issued provisionally sealing 134 pages of
Hedquist and HCI’s appendix. We now make that sealing permanent.

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