Pleading the “Official Duties” Element in Public-Employee Speech Cases:
Commentary on Von Busch v. Board of County Commissioners for Geary County

1. Introduction

This commentary examines the Tenth Circuit’s nonprecedential order and judgment in Von Busch v. Board of County Commissioners for Geary County, No. 25‑3026 (10th Cir. Dec. 17, 2025). Although labeled an “order and judgment” and not binding precedent (absent law-of-the-case or preclusion doctrines), the decision is citable for its persuasive value and fits within a growing line of Tenth Circuit authority tightening pleading standards in public-employee First Amendment retaliation suits.

The case centers on Tammy Von Busch, former Director of the Geary County Health Department, who alleged that the Board of County Commissioners terminated her in retaliation for protected speech criticizing a newly elected county commissioner, Patricia Giordano, and for raising concerns about the possible closure of the health department.

The key legal issue is narrow but important: whether the complaint plausibly alleged that Von Busch’s speech was not made “pursuant to” her official duties — the first and foundational element of the Garcetti/Pickering framework governing public-employee speech. The Tenth Circuit ultimately affirms dismissal of the complaint on Rule 12(b)(6) grounds, holding that Von Busch failed to plead sufficient facts about (1) her job duties and (2) the content, context, timing, and audience of her speech to show that she spoke as a private citizen rather than as a government employee.

The decision is doctrinally significant in three related respects:

It underscores that the Garcetti/Pickering factors are “essential elements” of a First Amendment retaliation claim, which must be plausibly pleaded under Twombly and Iqbal.
It clarifies, following Lane v. Franks, that speech related to an employee’s work is not automatically “pursuant to” official duties, but the plaintiff still bears the burden of pleading facts to show that it was outside those duties.
It tightens pleading expectations by requiring concrete allegations about both job duties and speech (what was said, when, where, and to whom), rejecting bare assertions that speech occurred in a “private, individual capacity” or in “private social settings” as conclusory.

2. Summary of the Opinion

2.1 Factual Background

According to the complaint (taken as true at the Rule 12(b)(6) stage), Geary County hired Tammy Von Busch in 2017 as Director of the County Health Department. Between 2017 and 2021, her performance evaluations described her work as “good,” “commendable,” and “exemplary.”

In January 2021, Patricia Giordano became a member of the Board of County Commissioners. Von Busch alleged that Giordano then:

refused to allocate necessary funding to the Health Department;
failed to support the Health Department adequately during the COVID‑19 pandemic; and
acted unprofessionally toward County employees and members of the public.

By September 2021, County employees informed Von Busch that the Board was planning to close the Health Department. She alleged that:

She began voicing concerns “in [her] private, individual capacity in private social settings” about the Board.
She raised “issues of public concern regarding the behavior of Giordano” at the Board’s monthly public forum meetings and “to the public at large in both public forums and private social settings.”
At the September 27, 2021 Board meeting, she expressed concerns about the rumored closure of the Health Department.
After Giordano allegedly engaged in retaliatory behavior (harassing emails, disparaging comments, combative communications), she publicly questioned Giordano’s “fitness for office” in public and private settings.

Subsequently, she received an undated “Notice of Disciplinary and/or Corrective Action” accusing her of “fighting or creating conflict,” “rudeness,” and “spreading gossip.” On November 29, 2021, her annual performance evaluation faulted her for a lack of “constant, complete communication,” “appropriate leadership,” and “good judgment in addressing a rumor with the Board.” She was then terminated.

2.2 Procedural Posture

Von Busch filed suit under 42 U.S.C. § 1983, alleging First Amendment retaliation; she also asserted a state‑law claim (not pursued on appeal). The Board moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that her speech was made pursuant to her official duties and thus not protected under Garcetti.

The district court (D. Kan.) agreed, finding a “match between the expressions [she] identifies and the tasks she was paid to perform” and concluding that her speech was unprotected because it “focused on the Health Department’s funding and a Board member’s impact on that funding,” matters “directly related” to her job. The court also held that the complaint’s references to speaking in a “private, individual capacity” and in “private social settings” were conclusory and insufficient to establish citizen speech.

Von Busch appealed, challenging dismissal of her First Amendment retaliation claim. The Tenth Circuit exercised jurisdiction under 28 U.S.C. § 1291 and affirmed.

2.3 Holding

The Tenth Circuit holds that Von Busch’s complaint failed to plausibly allege the first Garcetti/Pickering element: that her speech was not “pursuant to” her official duties. Specifically:

The complaint did not describe her official duties at all beyond the bare statement that she was employed as Health Department Director.
The complaint’s descriptions of her speech were largely vague and conclusory, lacking critical details about content, context, audience, location, and timing (apart from the September 27 meeting).
As a result, the court could not, applying Twombly/Iqbal, reasonably infer that her speech fell outside the scope of her duties, especially given her high‑ranking position and the subject matter of her comments.

The court also clarifies that, under Lane v. Franks, speech that merely relates to an employee’s work is not automatically unprotected; the key question is whether the speech is “ordinarily within the scope” of the employee’s duties. Nonetheless, because Von Busch did not plead the nature of her duties or sufficient details of her speech, she did not state a plausible claim.

While affirming the result, the Tenth Circuit explicitly notes that its reasoning differs from the district court’s in three ways:

It analyzes each category of alleged speech separately (Board meeting, public settings, private social settings) instead of treating them as a single undifferentiated mass.
It rejects the district court’s premise that speech is unprotected merely because it is “directly related to” an employee’s job, in light of Lane and Timmins.
It declines to infer job duties from snippets of performance evaluations, holding that those quotes do not adequately define the scope of official duties.

3. Legal Analysis

3.1 The Governing Framework: Garcetti/Pickering and Lane

3.1.1 The Garcetti/Pickering test

Public employees do not surrender all First Amendment rights, but their speech rights are limited in the employment context. The Supreme Court’s decisions in Pickering v. Board of Education, 391 U.S. 563 (1968), and Garcetti v. Ceballos, 547 U.S. 410 (2006), supply the now-familiar five-step test, as the Tenth Circuit summarizes (citing Helget v. City of Hays, 844 F.3d 1216 (10th Cir. 2017)):

Was the speech made pursuant to the employee’s official duties? If yes, it is not protected; the claim fails.
Was the speech on a matter of public concern?
If so, does the government’s interest, as employer, in efficiency outweigh the employee’s free-speech interests?
Was the protected speech a motivating factor in the adverse employment action?
Would the employer have made the same decision in the absence of the protected speech?

The first three steps are generally questions of law; steps four and five pertain to causation. Crucially, Von Busch never gets past step one.

3.1.2 Lane v. Franks: “Ordinarily within the scope” of duties

The Tenth Circuit relies on Lane v. Franks, 573 U.S. 228 (2014), to clarify what “pursuant to” official duties means. Lane rejected an overly broad reading of Garcetti that would deny protection to all speech “related to” an employee’s job. As the Supreme Court put it:

“[T]he critical question . . . is whether the speech at issue is itself ordinarily within the scope of an employee’s duties.” (Lane, 573 U.S. at 240.)

The Tenth Circuit invokes this principle twice:

First, to correct the district court’s reasoning that speech is unprotected simply because it was “directly related to” what the plaintiff was “paid to do.”
Second, to emphasize that a complaint must contain sufficient factual allegations for a court to evaluate whether the speech was within the ordinary scope of the plaintiff’s job duties.

Relatedly, the court cites Timmins v. Plotkin, 157 F.4th 1275 (10th Cir. 2025), for the proposition that an employee does not speak “pursuant to” official duties merely because the speech “owes its existence to” or “relates to” employment (quoting Lane). But Timmins also warns that “[s]tatements from high-ranking persons that have official significance are more likely to be pursuant to official duties,” a point the court uses against Von Busch in light of her director-level position.

3.2 Pleading Standards: Twombly, Iqbal, and the First Garcetti Element

3.2.1 Twombly/Iqbal basics

The opinion explicitly embeds the Twombly/Iqbal “plausibility” standard into the Garcetti framework. Citing Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Tenth Circuit reiterates:

A complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.”
Courts disregard “labels and conclusions” and “formulaic recitations of the elements.”
“Naked assertion[s]” devoid of “further factual enhancement” are not enough.

Drawing on Khalik v. United Air Lines, 671 F.3d 1188 (10th Cir. 2012), and Waller v. City of Denver, 932 F.3d 1277 (10th Cir. 2019), the court emphasizes that conclusory statements are stripped away, and the remaining facts must plausibly suggest liability.

By citing Tufaro v. Oklahoma ex rel. Board of Regents of the University of Oklahoma, 107 F.4th 1121 (10th Cir. 2024), the court makes explicit that the Garcetti/Pickering factors are not just an analytic guide but “essential elements” of the plaintiff’s claim. That has an important pleading consequence: the complaint must plausibly allege each factor, including the first one — that the speech was not pursuant to official duties.

3.2.2 What the complaint did (and did not) allege about duties

On the duties issue, the court’s critique is blunt:

“First, the complaint failed to allege Ms. Von Busch’s official duties. It said only that she ‘was employed by’ the Board ‘as the Director of [the] Health Department for Defendant County.’”

That bare statement of job title is not enough. The opinion underscores the importance of duty-specific facts by quoting Timmins’ observation that “statements from high‑ranking persons that have official significance are more likely to be pursuant to official duties.” For such a high‑level official, the failure to delineate job responsibilities is particularly problematic, because one might reasonably infer that speaking about department funding and operations is part of the job.

The Tenth Circuit also expressly declines to tease duties out of the performance evaluation quotes. It rejects the district court’s use of those quotes to infer duties, stating that they “did not describe her official duties or support reasonable inferences that would define the scope of those duties.” This signals that generic performance phrases (e.g., “communication,” “leadership”) are insufficient to define the contours of “official duties” for Garcetti purposes.

3.2.3 What the complaint did (and did not) allege about the speech

The court then scrutinizes the complaint’s descriptions of the alleged speech. It notes that Von Busch alleged, in substance, that:

She began expressing dissatisfaction with how the Board handled issues, “in [her] private, individual capacity in private social settings” and “to the public at large in both public forums and private social settings.”
She “expressed her issues of public concern,” including health department closure and Giordano’s behavior, in the Board’s “monthly public forum meetings” and to the public in public and private settings.
She spoke at the September 27, 2021 Board meeting about the rumored closure.
She questioned Giordano’s fitness for office “to the public at large in both public settings and private social settings.”

The Tenth Circuit agrees with the district court that general references to “private social settings,” “public at large,” and “public settings” are too vague and conclusory:

They do not reveal what she said beyond broad characterizations (“dissatisfaction,” “issues of public concern”).
They do not specify where she said it (e.g., at a town hall, on social media, in a newspaper, at a bar, at a private home).
They do not identify to whom she spoke (e.g., other county employees, random citizens, advocacy groups, reporters).
They do not give any temporal detail beyond the single September 27 meeting.

The court draws an analogy to Peterson v. Williams, 2022 WL 1421959 (10th Cir. May 5, 2022) (unpublished), a Garcetti/Pickering case where the plaintiff’s claim failed because he had not alleged to whom he spoke, how he spoke, or how his statements arose. As in Peterson, the court here says Von Busch’s allegations lack the necessary “factual enhancement” to evaluate the form and context of the speech.

The only event with any specificity is the September 27 Board meeting, where she expressed concern about the rumored closure of her department. But even there, the complaint provides almost no context:

Was this during a formal report she was expected to give as department director?
Was she speaking from the floor as a citizen in the public comment period?
Did she speak in an official capacity (presenting data, recommendations) or informally as a concerned resident?

Because those details are not pleaded, the court cannot meaningfully apply the “practical view of all the facts and circumstances” approach it endorsed in Knopf v. Williams, 884 F.3d 939, 946 (10th Cir. 2018), and Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192, 1204 (10th Cir. 2007).

3.2.4 Labels such as “private capacity” are not enough

Crucially, the court treats statements that she spoke “in [her] private, individual capacity” as classic Iqbal-type conclusory allegations:

“The district court further found the allegations that Ms. Von Busch spoke in her ‘private, individual capacity’ and in ‘private social settings’ were too conclusory to meet Garcetti/Pickering’s first element.”

The Tenth Circuit agrees. Merely asserting that speech was in a “private capacity” is essentially a restatement of the legal conclusion (that she was speaking as a citizen rather than an employee) and does not itself supply the underlying facts. The plaintiff must describe the circumstances from which a court can reasonably infer that the speech was, in fact, outside her ordinary job duties.

3.3 How the Tenth Circuit’s Reasoning Differs from the District Court’s

The court explicitly notes three areas where it parts ways with the district court, even while affirming the result.

3.3.1 Disaggregating the different instances of speech

First, the district court treated all of Von Busch’s speech as one undifferentiated whole — discussing her statements at the Board meeting, in “public” settings, and in “private” settings together. The Tenth Circuit instead:

Separately considers the September 27 Board meeting;
Acknowledges speech at other “monthly public forum meetings” (though details are lacking); and
Addresses generalized allegations of speech in unspecified public and private venues.

This approach aligns with the practical, context-specific analysis mandated by Garcetti, Lane, and Brammer-Hoelter: an employee’s speech can be protected in some contexts and unprotected in others, depending on the interplay between duties and circumstances. However, because the complaint fails to provide sufficient detail for any of the categories, the claim fails across the board.

3.3.2 Rejecting “directly related to the job” as the dispositive standard

Second, the district court appears to have relied on the idea that if speech is “directly related to” an employee’s tasks — e.g., health department funding and operations — it is necessarily unprotected. The Tenth Circuit, however, explicitly corrects that logic in light of Lane and Timmins:

Speech may concern work-related matters yet still be made as a citizen, particularly if the employee has no official duty to speak in that forum or in that capacity.
The correct question is whether the speech is “ordinarily within the scope” of duties, not merely whether it is about the workplace.

Nonetheless, because the plaintiff did not define her duties or describe the factual context of her speech, the court cannot conclude that any of the alleged speech falls outside those duties.

3.3.3 Rejecting performance evaluation snippets as evidence of official duties

Third, the district court used quotations from performance evaluations — criticizing her “communication,” “leadership,” and “judgment” in handling a rumor — to infer her job duties. The Tenth Circuit rejects that move, emphasizing that:

Such evaluations do not themselves delineate what she was “paid to do” in any precise way.
They cannot substitute for concrete allegations about the actual role and responsibilities of a county health director.

This is a subtle but important point for practitioners: not every reference to job performance can be reversed-engineered into a detailed description of official duties for Garcetti purposes. The burden remains on the plaintiff to plead — and later prove — what those duties were.

3.4 Precedents and Their Influence on the Court’s Decision

The opinion draws on an interlocking set of Tenth Circuit and Supreme Court cases. Their roles can be summarized as follows:

Pickering – Establishes the balancing framework between employee speech and governmental efficiency.
Garcetti – Introduces the “pursuant to official duties” threshold; speech made in that capacity is unprotected.
Lane – Narrows Garcetti by focusing on whether speech is “ordinarily within the scope” of duties, not merely related to employment.
Helget – Articulates the five Garcetti/Pickering factors in Tenth Circuit practice.
Tufaro – Labels those factors as “essential elements” of the claim, tightening pleading burdens.
Timmins – Places the burden on the plaintiff to prove the first factor and notes that high-level officials’ speech is more likely duty-related.
Brammer-Hoelter – Provides a flexible, fact-specific approach to determining whether speech is part of job duties and uses the “paid to do” language the district court relied upon.
Knopf – Reaffirms that courts must take a “practical view of all the facts and circumstances” in applying Brammer-Hoelter.
Twombly and Iqbal – Supply the plausibility standard and the directive to disregard conclusory allegations.
Khalik, Waller, Brown, Luethje – Frame the Tenth Circuit’s specific application of Twombly/Iqbal to civil-rights complaints.
Peterson v. Williams (unpublished) – Illustrates dismissal of public-employee speech claims that lack detail about form, context, and audience.

Collectively, these authorities push in the same direction: First Amendment retaliation claims by public employees must be pleaded with factual specificity, and courts will carefully police that requirement at the Rule 12(b)(6) stage.

3.5 Doctrinal Impact and Future Litigation

Although nonprecedential, Von Busch reflects and reinforces an important doctrinal trend in the Tenth Circuit:

Pleading the first Garcetti element is no longer perfunctory.
Plaintiffs must specifically allege:
- what their official duties were; and
- how, when, where, and to whom they spoke, in enough detail to allow a court to evaluate whether the speech was outside those duties.
High-ranking public officials face a steeper pleading challenge.
As Timmins suggests and Von Busch applies, speech by high-level managers (e.g., department directors) is more readily presumed to have “official significance.” To overcome that, the complaint must carefully paint a picture of the plaintiff stepping out of her role — for example, by speaking during citizen comment periods, to the press in a personal capacity, or on her own time on matters beyond her assigned portfolio.
Labels and legal buzzwords are insufficient.
Descriptions such as “private, individual capacity,” “private social settings,” and “issues of public concern” are treated as conclusory. Complaints must replace such labels with concrete narrative facts.
The court is alert to overbroad employer arguments.
While affirming dismissal, the Tenth Circuit corrects the district court’s “directly related to the job” formulation. This sends a subtle warning to government defendants not to overgeneralize job duties or argue that all work-related speech is unprotected per se.

For plaintiffs and their counsel, the practical implication is clear: a barebones, generalized pleading of speech and job role will almost certainly fail. For public employers, the opinion offers a roadmap for crafting effective 12(b)(6) motions in cases where the complaint does not describe duties or speech with sufficient specificity.

4. Complex Concepts Simplified

4.1 “Pursuant to official duties” vs. “as a citizen”

Under Garcetti and Lane:

If an employee is speaking because it is part of their job to do so — for example, writing internal reports, advising supervisors, testifying as part of assigned responsibilities — they are speaking “pursuant to official duties.” That speech is not protected by the First Amendment for purposes of a retaliation claim.
If an employee speaks like any other citizen — for instance, writing an op-ed, testifying in court when not required by their job, speaking at a town-hall meeting during public comment — then the speech may be protected, even if it involves workplace issues, so long as other elements are satisfied.

The line is often blurry. That is why detailed pleadings about duties and context are crucial.

4.2 “Matter of public concern”

Although the Tenth Circuit does not reach this factor because the case is resolved at step one, a “matter of public concern” generally means speech related to political, social, or community issues about which the public would reasonably care — such as:

alleged corruption or abuse of office;
misuse of public funds;
public health and safety policies (like closure of a health department); or
official misconduct by elected officials.

By contrast, speech that merely airs personal grievances about workplace treatment (e.g., personality conflicts, internal personnel matters) often does not qualify.

4.3 Twombly/Iqbal “plausibility” and why details matter

“Plausibility” is more than a mere possibility but less than probability. A claim is plausible if, assuming the facts alleged are true (but ignoring bare conclusions), it is reasonable to infer that the defendant is liable. Plaintiffs must therefore:

State facts, not just conclusions (“I was retaliated against” is a conclusion; “I was fired two days after X speech” is a fact).
Provide enough contextual detail to show how the legal claim logically follows.
Avoid relying solely on legal labels like “private capacity,” “public concern,” or “retaliation.”

In Von Busch, the court found that the lack of specific facts about duties and speech made it impossible to infer that the speech was citizen speech rather than job speech.

5. Practical Takeaways and Broader Significance

5.1 For plaintiffs and their counsel

To survive a motion to dismiss in a Garcetti/Pickering case in the Tenth Circuit, a complaint should:

Spell out job duties with some precision.
For a health department director, for example, this might include:
- responsibility for day‑to‑day operation of the department;
- preparing budget proposals and advising the Board about funding needs;
- implementing Board policies and public health programs;
- responding to public health emergencies.
If the complaint had alleged such details, the court could better evaluate whether speaking at Board meetings about closure or funding was normally part of that role.
Describe each instance of speech with concrete detail.
For each alleged act of speech that triggered retaliation, specify:
- What exactly was said;
- When it was said;
- Where it was said (e.g., at a public Board meeting, on social media, in a newspaper);
- To whom it was said (e.g., general public, coworkers, reporters, elected officials); and
- Whether the plaintiff was on or off duty, and whether the speech was part of any assigned function.
Avoid resting on conclusory labels.
Instead of saying, “I spoke as a private citizen in private social settings,” provide a short narrative, e.g., “At a neighborhood gathering at my home after work hours, I told non‑employee friends that Commissioner X’s conduct endangered public health because…”
Anticipate the “high-ranking official” concern.
If the plaintiff holds a senior position, the complaint should emphasize the ways in which the speech was outside that role — such as speaking at a citizen comment period where no official report was expected, or writing a letter to the editor in a personal capacity.

5.2 For public employers and defense counsel

The decision provides guidance on effective defense strategies:

Challenge complaints that do not specify duties and speech details, framing the first Garcetti factor as an unpleaded “essential element.”
Argue that vague phrases (“public at large,” “private capacity”) are conclusory and should be disregarded under Iqbal.
Highlight the plaintiff’s rank and position when arguing that speech is likely to fall within official duties.
Be cautious not to overstate the law by equating “work-related” with “pursuant to duties”; Lane and Von Busch both reject that simplification.

5.3 Systemic impact in the Tenth Circuit

Within the Tenth Circuit, Von Busch fits a broader pattern of cases (including Peterson and Khalik) that demand considerable factual specificity in civil rights pleadings. In the public-employee speech context, the decision particularly:

Raises the bar for how carefully plaintiffs must draft complaints;
Provides additional support for early motions to dismiss by public employers; and
Reinforces the centrality of the first Garcetti factor as a threshold gatekeeper issue.

Although not binding as precedent, the opinion is citable under Fed. R. App. P. 32.1 and Tenth Circuit Rule 32.1 for its persuasive value and will likely be used to support motions to dismiss in similar § 1983 actions.

6. Conclusion

Von Busch v. Board of County Commissioners for Geary County does not announce a new constitutional rule so much as it sharpens the application of existing doctrine at the pleading stage. The case stands for a clear and practical proposition:

In public-employee First Amendment retaliation suits, a plaintiff must plausibly plead both the scope of her official duties and the to show that she spoke as a citizen rather than as an employee. Vague references to speaking in a "private capacity" or "public settings" are insufficient.

By integrating Lane’s refinement of Garcetti with the plausibility framework of Twombly/Iqbal, and by explicitly treating the Garcetti/Pickering factors as “essential elements” of a § 1983 claim, the Tenth Circuit reinforces that First Amendment retaliation complaints must be fact-rich and carefully drafted. While the plaintiff here lost at the pleading stage, the opinion offers a detailed roadmap for future litigants on both sides of the “v.” and contributes to the ongoing evolution of public-employee speech doctrine in the federal courts.

Pleading the “Official Duties” Element in Public-Employee Speech Cases: Commentary on Von Busch v. Board of County Commissioners for Geary County