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Date: 11-07-2017

Case Style:

Dena Utter v. Amie Rose Colclaizer

Tenth Circuit Court of Appeals Courthouse - Denver, Colorado

Case Number: 17-7002

Judge: Mary Beck Briscoe

Court: United States Court of Appeals for the Tenth Circuit on appeal from the Eastern District of Oklahoma (Muskogee County)

Plaintiff's Attorney: Heath Merchen

Defendant's Attorney: Laura L. Holmes and Laura L. Holmgren-Ganz

Description: Plaintiffs Kena Utter, Aubree Holsapple, and Dara Campbell (collectively, the Teachers) appeal the district court’s dismissal of their numerous federal and state claims against the Seminole School District (District), which is governed by the
Seminole Board of Education (the Board), and three of the Board’s five members,
Amie Rose Colclazier, Jack Cadenhead, and Mickey Upton (collectively, the Board
Members).1 We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and
reverse in part.
The Teachers worked for Seminole, Oklahoma, schools under temporary
contracts that expired at the end of the 2014-15 school year. They were also covered
by a collective bargaining agreement between the Seminole Association of
Classroom Teachers, the District, and the Board (the CBA). Ms. Campbell was an
agriculture education teacher at the high school; Ms. Holsapple was a special
education counselor at the elementary school; and Ms. Utter was a first-grade teacher
at the elementary school. All of the Teachers received excellent ratings on their
evaluations and their principals recommended the Board rehire them for the 2015-16
school year. School Superintendent, Jeff Pritchard, concurred with these
recommendations. All of the Teachers were included on a slate of teachers submitted
to the Board for approval to be rehired at its June 11, 2015, meeting (the Board
1 The Teachers sued the individual Board Members in their official and
individual capacities. The district court dismissed the official-capacity claims
against the Board Members, which the Teachers do not challenge on appeal.
A week before the Board Meeting, Ms. Colclazier called Mr. Pritchard and
informed him that she was inclined to join Mr. Cadenhead and Mr. Upton in voting
against rehiring the Teachers. Mr. Pritchard told Ms. Colclazier he was baffled by
this because he had never had any complaints against the Teachers and all had
received excellent evaluations. Ms. Colclazier said Ms. Utter was late every day,
Ms. Holsapple did not care about special education, and Ms. Campbell was
disorganized. Ms. Colclazier said she planned to vote against a fourth teacher, Caleb
Gordon, because he had supported students who had protested in favor of a school
bond issue.2
Ms. Colclazier told Mr. Pritchard to tell the Teachers’ principals to remove
their names from the slate of teachers they were recommending the Board rehire.
Four days later, Mr. Cadenhead went to Mr. Pritchard’s office and asked if he was
going to remove the Teachers from the rehire list. Mr. Pritchard said he was not.
Ms. Colclazier called Mr. Pritchard later that day to say she was going to vote against
rehiring the Teachers, and that he should have the Teachers’ names removed from the
rehire list. That evening, Mr. Upton contacted Mr. Pritchard and stated he too was
going to vote against rehiring the Teachers.
At the Board Meeting, the Board Members voted to rehire all of the
recommended slate of temporary teachers except the Teachers. The two other board
2 The Board Members ultimately voted to rehire Mr. Gordon and he is not a
party to this action.
members, Mr. Levy and Ms. Willis, voted to rehire the Teachers. Mr. Pritchard
resigned as Superintendent after 32 years with the District to protest the Board
Members’ vote against the Teachers. He later testified that the Board Members had
violated the CBA, which required, among other things, that teachers be evaluated
only by principals and only while they are performing their job functions. Mr. Levy
and Ms. Willis testified the Board Members had improperly evaluated the Teachers
and interfered with the administrative functions of the school.
The Teachers filed a complaint in state court, which was removed to federal
court by the Defendants. The Teachers’ complaint included these eight claims: (I)
the Defendants breached the contractual obligations set forth in the CBA; (II) the
Defendants failed to comply with the Teacher Due Process Act, Okla. Stat. tit. 70, §§
6-101.20 to .32 (TDPA); (III) the Board Members violated Oklahoma’s Open
Meeting Act; (IV and V) the Board Members violated their constitutional due process
liberty interest rights and due process property interest rights in violation of
42 U.S.C. § 1983; (VI) the Board Members violated Ms. Campbell’s First
Amendment free speech rights in violation of § 1983; (VII) the Board Members
retaliated against Ms. Utter for taking leave in violation of her rights under the
Family and Medical Leave Act, 29 U.S.C. § 2615(a)(2) (FMLA); (VIII) the Board
Members intentionally interfered with the Teachers’ prospective business interests
with the District.
The Defendants moved to dismiss Counts I, II, IV, and V under Fed. R. Civ. P.
12(b)(6) for failure to state a claim. The district court granted the motion. It first
dismissed Count II, ruling that the TDPA expressly excludes temporary contract
teachers from coverage. See Okla. Stat. tit. 70, § 6-101.23(A)(3) (stating the TDPA
“shall not apply to . . . [t]eachers who are employed on temporary contracts”). The
court then dismissed Count I, the CBA breach of contract claim, ruling that there was
no breach of the CBA because the Teachers were not covered by the TDPA. Aplt.
App., Vol. I, at 84-85. The court dismissed Count V, ruling that temporary contract
teachers have no due process property interest in any continuing contract, and
dismissed Count IV, ruling the alleged remarks by the Board Members did not
infringe on the Teachers’ liberty interests in their good names and reputations.
The Teachers moved for reconsideration and clarification of the dismissal of
their Count I breach of contract claim because the district court failed to address the
CBA provisions that were unrelated to the TDPA. The district court denied the
motion. The Teachers also requested leave to amend their complaint, which the
district court denied as futile.
The district court ultimately granted the Defendants’ motion for summary
judgment on all of the remaining federal claims, dismissing Ms. Campbell’s § 1983
First Amendment claim, and Ms. Utter’s FMLA claim. The district court then
remanded to state court the Oklahoma Open Meeting Act claim and the claim for
intentional interference with business interest.
The Teachers raise four issues on appeal, challenging the district court’s Rule
12(b)(6) dismissal of their CBA breach of contract claim, its grant of summary
judgment in favor of the Defendants on Ms. Campbell’s § 1983 First Amendment
claim and Ms. Utter’s FMLA claim, and the denial of their motion for leave to amend
their complaint.
We review de novo a district court’s dismissal of claims under Fed. R. Civ. P.
12(b)(6) and its grant of summary judgment under Fed. R. Civ. P. 56(a). Schrock v.
Wyeth, Inc., 727 F.3d 1273, 1279-80 (10th Cir. 2013). To withstand a motion to
dismiss, a complaint must allege “‘enough facts to state a claim to relief that is
plausible on its face.’” Id. at 1280 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). We assume the truth of “all well-pleaded factual allegations in a
complaint and view these allegations in the light most favorable to the plaintiff[s].”
Id. (internal quotation marks omitted). “Summary judgment is appropriate only if
‘there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” Id. at 1279 (quoting Fed. R. Civ. P. 56(a)). Under
this standard, we view the evidence in the light most favorable to the nonmovant. Id.
We also review de novo a court’s denial of leave to amend on the basis that
amendment would be futile. Cohen v. Longshore, 621 F.3d 1311, 1314 (10th Cir.
1. Breach of Contract Claim. The Teachers allege in Count I that the
Defendants breached the contractual obligations in the CBA by failing to comply
with provisions requiring the Board to: (a) evaluate teachers based on actual
observation and knowledge while the teacher is performing her job function;
(b) follow state laws and regulations regarding interference with school
administration and the Open Meeting Act; and (c) not suspend, demote, or terminate
any teacher without due process. As to the CBA’s requirement that the Board follow
state laws and regulations, some, but not all, of the state laws referenced by the
Teachers in their complaint were provisions of the TDPA.
The Teachers argue on appeal the district court mischaracterized their breach
of contract claim as asserting only that the CBA required compliance with the state
laws related to TDPA, and thus failed to address those provisions of the CBA
unrelated to the TDPA that the Defendants allegedly breached. When the Teachers
moved for clarification explaining that the district court had too narrowly construed
the scope of their CBA claim, the district court denied their motion on the basis that
“an Oklahoma teacher on a temporary contract has no expectation of a continuing
contract status.” Aplt. App., Vol. III at 600 (footnote omitted). Thus, the court again
failed to address all of their CBA claims. They also argue the district court failed to
accept as true their allegation that the actions constituting alleged breaches of the
CBA occurred while they were still employed under the temporary contract. We
agree with the Teachers’ claims of error.3
The Teachers’ complaint quoted several CBA provisions that they allege the
Defendants breached. Notably, however, no party ever provided the district court
with a copy of either the CBA or the Teachers’ temporary contracts. Accordingly,
the district court could evaluate the terms and provisions of the CBA only as it was
described in the complaint. The Teachers contend, and the Defendants do not
dispute, that the terms and provisions of the CBA apply to them, even though they
are temporary teachers, because the CBA applies to all teachers, regardless of the
duration of any teacher’s contract.
But the Defendants argue, as they did in their Motion to Dismiss, that any
rights the Teachers had under the CBA expired when their temporary contracts
expired—at the end of the 2014-15 school year—which was prior to the June 11
Board Meeting. From this, they argue their actions at the Board Meeting could not
have breached the CBA. Their argument rests on flawed assumptions: Even if the
Teachers’ rights under the CBA did expire when their temporary contracts expired—
an assertion we cannot confirm without reviewing the CBA or the temporary
3 The Teachers also contend they presented genuine issues of material fact that
would preclude summary judgment on their CBA breach of contract claim. The
breach of contract claim was dismissed under Rule 12(b)(6), prior to the Defendants’
summary judgment motion, and we express no opinion in the first instance on how
their breach of contract claim would fare were the Defendants to challenge it in a
summary judgment motion.
contracts—the Teachers’ allegations are not limited to the Defendants’ actions taken
at the Board Meeting. The Teachers’ allege the Defendants breached the terms of the
CBA by evaluating them, interfering with school administration, and discussing
matters prior to the Board Meeting in violation of the Open Meeting Act. There is no
basis in the complaint to conclude these actions occurred only after the CBA expired.
Viewing the factual allegations in the light most favorable to the Teachers, they are
covered by the CBA and at least some of the Defendants’ actions occurred while the
Teachers were protected by the CBA.
Contrary to the district court’s characterization of the breach of contract claim,
the Teachers’ complaint alleged the Defendants breached the CBA in several ways
unrelated to the TDPA. We conclude the Teachers plausibly alleged facts suggesting
the Defendants breached the CBA in two such ways.
First, the Teachers allege the CBA requires that “‘[e]ach [teacher] evaluation
shall be based upon the evaluator’s actual observation and knowledge of the teacher
evaluated while performing his/her job function,’” and that “‘[t]eachers will be
evaluated by principals, as required by law.’” Aplt. App., Vol. I at 10 (quoting CBA
Art. XI, § 11.2). The Teachers plausibly allege in their Complaint that the
Defendants breached this provision because they evaluated the Teachers’
performance without any actual observation or knowledge, not as the Teachers’
principals, and not while the Teachers were performing their jobs.
Second, the Teachers allege the CBA provides in relevant part that “‘[t]he
Board . . . agree[s] to abide by all state and federal statutes, rulings, and
regulations,’” Id. at 21 (quoting CBA Art. II, § 2.1). One such regulation cited by the
Teachers, unrelated to the TDPA, provides that “‘[t]he local board and its individual
members shall refrain from involvement in or interference with administrative
functions of the school.’” Id. at 12 (quoting Okla. Admin. Code
§ 210:35-3-48(a)(3)). The Teachers plausibly allege that the Board Members
violated this regulation—and thus the CBA—by evaluating the Teachers based on
hearsay from persons other than their principals, directing Mr. Pritchard and the
principals to remove their recommendations to rehire the Teachers, and taking
positions regarding rehiring the Teachers that were directly at odds with the
evaluation and recommendations of the principals and Mr. Pritchard, thereby
involving themselves and interfering with the schools’ administrative functions.
Another state law cited by the Teachers, also unrelated to the TDPA, is Oklahoma’s
Open Meeting Act, which prohibits secretive meetings of public bodies. The
Teachers plausibly allege the Defendants breached the Open Meeting Act—and thus
the CBA—when the Board Members privately discussed among themselves prior to,
and outside of, the public Board Meeting, their intentions and decisions to vote
against rehiring the Teachers.
The Teachers allege the district court erred in not addressing a third breach of
the CBA, which they sought to assert more clearly in their motion for leave to amend,
namely that the CBA includes an express due process provision. According to the
complaint, the CBA states that “‘[n]o teacher shall be suspended, demoted, or
terminated without due process,’” Id. at 10 (quoting CBA Art. IX, § 9.3 and Art. XI,
§ 11.2). The Teachers allege this CBA provision provided them due process rights
with respect to the process by which their contracts were not renewed. We conclude
this is not a plausible claim.
The plain language of the CBA as related by the Teachers in their complaint
states that teachers are entitled to due process protection only for a suspension,
demotion, or termination decision. See id. And it is clear from the complaint that the
Teachers were not “suspended, demoted, or terminated,” id., but rather that their
temporary teaching contracts expired at the end of the school year, and the Board did
not vote to hire them under a new contract. As the district court explained, under
Oklahoma law, temporary contract teachers do not have any due process right to a
continuing contract. See DeHart v. Indep. Sch. Dist. No. 1 of Tulsa Cty., 259 P.3d
877, 883 (Okla. Civ. App. 2011). Thus, the Teachers did not plausibly allege facts
demonstrating a breach of the CBA’s due process provision.
To summarize, the Teachers alleged facts sufficient to give rise to plausible
breach of contract claims under the CBA’s evaluation provision, Art. XI, § 11.2, and
compliance-with-state-laws provision, Art. II, § 2.1, with respect to laws unrelated to
the TDPA. Thus, the Rule 12(b)(6) dismissal of those claims was inappropriate. But
the Teachers failed to present a plausible claim that the Defendants breached the
CBA’s due process provision.
2. Leave to Amend. The Teachers challenge the district court’s denial of their
request to file a second amended complaint. They sought to more clearly articulate
their claim that the Defendants breached the due process provision in the CBA, as
described above. They also sought to more clearly articulate their claim that they
were entitled to due process under Oklahoma’s Constitution. And they sought to add
a claim that they have a due process property interest in the renewal of their contracts
based on the custom and practice of the District, which was that throughout the
District’s history, the Board always voted to rehire a teacher if the teacher’s principal
and superintendent recommended the teacher be rehired, absent financial concerns or
a program change not present here. The district court denied leave, ruling further
amendment would be futile.
“A proposed amendment is futile if the complaint, as amended, would be
subject to dismissal.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018
(10th Cir. 2013) (internal quotation marks omitted). As stated above, the Teachers
have not plausibly alleged a breach of the CBA’s due process provision because the
Defendants’ decision not to rehire them after their temporary contracts expired was
not a suspension, demotion, or termination decision under the plain language of the
CBA. The Teachers’ due process claim under Oklahoma’s Constitution is similarly
flawed. They rely upon an Oklahoma Supreme Court case holding “that Article 2,
Section 7 of the Oklahoma Constitution affords minimal procedural protection to
persons who by contract or law have a limited right to hold their jobs or to be free
from discipline ‘unless good cause is shown.’” Umholtz v. City of Tulsa, 565 P.2d
15, 24 (Okla. 1977) (emphasis added). But as we have held, the Teachers have not
plausibly alleged, or presented any evidence, that they had any limited property right
under any contract.
The Teachers’ proposed amendment asserted that they have a limited right to
hold their job by law, however. They claim a property interest in renewal of their
contracts based on the custom and practice of the Board, that is, that the Board’s
custom was to rehire temporary contract teachers when that was the recommendation
of their principal.4 Oklahoma courts have held that “[t]eachers working under
temporary contracts are not afforded the due process protections of career teachers.”
DeHart, 259 P.3d at 883 (rejecting teacher’s claim that the school district’s conduct
and custom of offering her consecutive temporary contracts created a contract of
4 The Defendants assert, as they did before the district court, that the
temporary contracts and the CBA “clearly state that there is no expectation to
continued employment,” which negates the possibility of any contrary custom and
practice. Aplt. App., Vol. I at 76 (emphasis omitted); see also Aplee. Br. at 4, 15-16.
The district court appears to have accepted that statement as true, holding it was not
plausible that the District negated its “written policy” for an unwritten custom and
practice. Aplt. App., Vol. III at 600. But neither the CBA nor the temporary
contracts were ever made part of the record, and nothing in the record confirms that
the temporary contracts or the CBA “expressly state that there is no expectation of
continued employment.” Aplee. Br. at 16.
continuing employment). The Teachers cite cases generally holding that the issue of
whether an implied employment contract creates a property interest is generally a fact
issue for a jury. But under Oklahoma law, which is the relevant law here, as a matter
of law, an implied employment contract does not exist “if the alleged promises are
nothing more than vague assurances.” Hayes v. Eateries, Inc., 905 P.2d 778, 783
(Okla. 1995). In order to create an implied employment contract in Oklahoma, “the
promises must be definite: Only when the promises are definite and, thus, of the sort
which may be reasonably or justifiably relied on by the employee, will a contract
claim be viable.” Bourke v. W. Bus. Prods., Inc., 120 P.3d 876, 887 (Okla. Civ. App.
2005) (brackets and internal quotation marks omitted). “[V]ague assurances of
continued employment will not support a finding of an implied employment
agreement.” Id.
Here, the Teachers have not even alleged vague assurances of continuing
employment, let alone any definite promise. They have merely alleged that the
Board has historically rehired temporary teachers when their principals so
recommended. We conclude the Teachers did not plead facts sufficient to establish
the formation of an implied employment contract, and thus, have not established any
protectable property interest to support a due process claim. We affirm the district
court’s dismissal of their request for leave to file a second amended complaint.
3. FMLA Claim. Ms. Utter has an autistic son, and she obtained permission
from her principal to take intermittent leave on those mornings when her son’s
condition required her to care for him. Ms. Utter claims the Defendants retaliated
against her for exercising her FMLA rights.
The district court dismissed this claim, ruling Ms. Utter failed to state a prima
facie FMLA retaliation claim. The parties do not dispute that the leave Ms. Utter’s
principal allowed her to take to care for her autistic son qualified as permissible
FMLA leave. And it is undisputed that at least Ms. Colclazier voted not to rehire
Ms. Utter because she came in late some mornings as a result of taking FMLA leave.
But it is also undisputed that neither Ms. Colclazier nor any of the Board Members
were aware of Ms. Utter’s leave agreement with her principal. Because none of the
Board Members knew she was taking FMLA leave, the district court ruled Ms. Utter
failed to present any evidence the Board Members’ actions were motivated by the
exercise of her FMLA rights, a necessary element of a prima facie FMLA retaliation
claim. We agree the Defendants were entitled to summary judgment on Ms. Utter’s
FMLA claim.
“To make out a prima facie retaliation claim, [Ms. Utter] must show that:
(1) she engaged in a protected activity; (2) [the Defendants] took an action that a
reasonable employee would have found materially adverse; and (3) there exists a
causal connection between the protected activity and the adverse action.” Campbell
v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007) (internal quotation
marks omitted). “We have characterized the showing required to satisfy the third
prong under a retaliation theory to be a showing of bad intent or ‘retaliatory motive’
on the part of the employer.” Id. The district court ruled Ms. Utter met the first two
prongs, but failed to present evidence that satisfied the third prong—a causal
connection between her FMLA leave and the Board Members’ decision to not to
rehire her—because it is undisputed they were unaware she was taking FMLA leave.5
“A causal connection is established where the plaintiff presents evidence of
circumstances that justify an inference of retaliatory motive. . . .” Garrett v.
Hewlett-Packard Co., 305 F.3d 1210, 1221 (10th Cir. 2002) (internal quotation marks
omitted). We have held that a plaintiff cannot prove a causal connection when the
decision maker took the challenged employment action without knowledge that the
plaintiff was taking FMLA leave. Sabourin v. Univ. of Utah, 676 F.3d 950, 958-59
(10th Cir. 2012); see also Didier v. Abbott Labs., 614 F. App’x 366, 378 (10th Cir.
2015) (upholding summary judgment dismissal of FMLA retaliation claim because
the plaintiff did not present evidence that the persons responsible for terminating her
knew she was taking FMLA leave). If knowledge is lacking, then the protected
activity cannot be said to have caused the adverse employment action. Jones v.
United Parcel Serv., Inc., 502 F.3d 1176, 1195 (10th Cir. 2007) (holding, in an
5 Alternatively, the district court ruled that even if Ms. Utter’s evidence that
Board Members did not rehire her because she came in late was sufficient to satisfy
this third prong, the Board Members presented legitimate, non-discriminatory reasons
for not rehiring her, namely that she often left her students without prepared lesson
plans for the substitute teachers. It ruled Ms. Utter failed to present any evidence this
proferred reason was pretext for FMLA retaliation. Because we agree Ms. Utter did
not establish a prima facie claim, we need not reach this alternative basis for granting
summary judgment.
Americans with Disability Act retaliation action, that “[u]nless an employer knows
that an employee is engaging in protected activity, it cannot retaliate against that
employee because of the protected conduct”).
Ms. Utter argues an employer can be liable for violating FMLA even if it did
not know FMLA was involved. But all of the cases she relies upon are from outside
our circuit, and all but one involve FMLA interference claims, not FMLA retaliation
claims, which is what she alleges.6 The difference between an interference claim
and a retaliation claim is that the latter requires evidence of discriminatory or
retaliatory intent, while the former does not. See Brown v. ScriptPro, LLC, 700 F.3d
1222, 1226-27, 1230 (10th Cir. 2012) (explaining that in an interference claim, “[a]
deprivation of [an employee’s FMLA] rights is a violation regardless of the
employer’s intent,” but in a retaliation claim, the employee must present
“circumstantial evidence of retaliatory motive”). Ms. Utter does not cite to any
Tenth Circuit case in which we have held a prima facie FMLA retaliation claim was
established even though the decision maker was unaware of the plaintiff’s protected
FMLA activity. We affirm the dismissal of Ms. Utter’s FMLA claim.
6 Ms. Utter also relies upon Dotson v. Pfizer, Inc., 558 F.3d 284, 295 (4th Cir.
2009), which held that an employer’s notice of an FMLA-related need for leave was
sufficient notice to expose the employer to liability for an FMLA retaliation claim.
But unlike the facts in Dotson, Ms. Utter presented no evidence that the Board
Members were aware she was taking any approved leave, let alone were aware she
had any need for FMLA-related leave.
4. First Amendment Section 1983 Claim. Ms. Campbell alleges the Board
Members retaliated against her for exercising her First Amendment free speech rights
by voting not to rehire her because she spoke out publicly in favor of the bond issue.
The bond issue was a divisive topic in Seminole; those in favor of the bond issue
wanted a new high school built, those opposed wanted the existing high school
remodeled. Mr. Cadenhead, Ms. Colclazier, and Mr. Upton opposed the bond issue;
Mr. Pritchard and the other two board members, Mr. Levy and Ms. Willis, supported
it. Ms. Campbell also supported the bond issue, and it is undisputed the Board
Members were aware of her support because she appeared at board meetings in favor
of it, posted her support on Facebook, and was a vocal community activist. She
contends the Board Members voted not to rehire her because she spoke out in favor
of the bond issue, in violation of her First Amendment rights.
It is clearly established that a public employer “cannot condition public
employment on a basis that infringes the employee’s constitutionally protected
interest in freedom of expression.” Connick v. Myers, 461 U.S. 138, 142 (1983).
Adverse employment actions considered serious enough to inflict constitutional
injury include refusals to renew a contract, Board of Cty. Comm’rs, Wabaunsee Cty.
v. Umbehr, 518 U.S. 668, 685 (1996) or to rehire an employee, Rutan v. Republican
Party of Illinois, 497 U.S. 62, 76 (1990).
To balance the interests of a public employer’s need for some control over an
employee’s words and actions with the employee’s free speech rights, we employ the
familiar Garcetti/Pickering balancing test, which consists of five factors:
(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.
Trant v. Oklahoma, 754 F. 3d 1158, 1165 (10th Cir. 2014) (internal quotation marks
The first three factors favor Ms. Campbell, as the Defendants do not dispute
that Ms. Campbell’s speech in favor of the bond issue was made pursuant to her
official duties, related to a matter of public concern, and the Board’s interests as
employer did not outweigh her free speech interests. But the district court ruled that
Ms. Campbell failed to establish the fourth factor, that her speech was a motivating
factor in the Board Members’ decision not to rehire her. It cited the Defendants’
assertions that they voted not to rehire her because they heard she was disorganized,
was unsupportive of Future Farmers of America and 4-H programs, and made
negative comments on social media about being an agricultural teacher. The district
court did not reach the fifth factor—whether the Defendants showed they would have
taken the same action absent Ms. Campbell’s bond issue speech.
Ms. Campbell argues the district court failed to view the evidence in the light
most favorable to her and instead erroneously viewed the evidence in the light most
favorable to the Defendants and, indeed, improperly weighed the evidence itself. She
argues she presented sufficient genuine issues of material fact to present a jury
question as to whether the Defendants were motivated by her protected speech. We
Ms. Campbell presented evidence that Mr. Cadenhead directly communicated
with her to challenge her comments and Facebook posts in favor of the bond issue.
He told Ms. Campbell her information was wrong or incorrect, and he admitted he
spoke to Ms. Campbell about the bond issue to try to convince her to oppose it.
Ms. Campbell testified she felt intimidated by these personal communications from a
Board Member. Mr. Cadenhead admitted it was inappropriate for him to
communicate directly with Ms. Campbell but did so in order to convince her to
oppose the bond issue.
Mr. Pritchard testified that he believed Ms. Campbell’s support for the bond
issue played a role in the Board Members’ vote not to rehire her and that there was
no other reason for their vote. He also testified that Ms. Colclazier wanted to vote
against another teacher, Caleb Gordon, because he had supported students who
protested in favor of the bond issue. Ms. Campbell presented evidence from the two
other Board Members, Mr. Levy and Ms. Willis, that they believed the Board
Members opposed rehiring Ms. Campbell because she vocally supported the bond
issue. She presented evidence that both Mr. Cadenhead and Ms. Colclazier told her
prior to her support for the bond issue that she was doing an excellent job, which
contradicts their subsequent statements that they voted against rehiring her because
of job performance issues. She also presented evidence that it was highly unusual for
the Board Members to go against the Superintendent’s and principals’
recommendation to rehire a teacher, presenting evidence that throughout its history,
the Board always accepted these rehire recommendations in the absence of financial
concerns or program changes.
Viewing this evidence in the light most favorable to Ms. Campbell, we
conclude that she presented sufficient evidence for a reasonable fact finder to infer
that her comments were a motivating factor in the Board Members’ decision not to
rehire her. The question of whether a public employee’s speech was a motivating
factor behind the employer’s decision to take an adverse employment action against
the employee is a question of fact for a jury to decide. Thomas v. City of Blanchard,
548 F.3d 1317, 1327 (10th Cir. 2008); Baca v. Sklar, 398 F.3d 1210, 1218-19
(10th Cir. 2005). We disagree with the district court’s conclusion that there was no
evidence that Ms. Campbell’s speech about the bond issue was a factor in the Board
Members’ decision not to rehire her. We agree with Ms. Campbell that the district
court improperly weighed the disputed issues of fact, accepting as true the
Defendants’ assertions, and failing to credit any of her evidence.
The district court also ruled the Board Members were entitled to qualified
immunity from Ms. Campbell’s First Amendment claim both because she did not
establish a First Amendment violation and because she “cited no authority showing
she has a clearly established constitutional right that would prevent [the Board
Members] from voting on whether to rehire her” based on her support for the bond
issue. Aplt. App., Vol. III at 609.
For purposes of qualified immunity, we resolve all factual disputes in favor of
the party asserting the injury. Estate of Booker v. Gomez, 745 F.3d 405, 411
(10th Cir. 2014). As noted, Ms. Campbell has presented evidence sufficient to
establish her First Amendment rights were violated. Having rejected the district
court’s first reason to deny qualified immunity, we also reject the latter.
Ms. Campbell cited to Pickering v. Board of Education, which clearly established
that “a teacher’s exercise of [her] right to speak on issues of public importance may
not furnish the basis for [her] dismissal from public employment” by members of the
Board of Education who have the right to vote on that teacher’s employment.
391 U.S. 563, 574 (1968). Fifty years ago, the Supreme Court held that public
teachers have a First Amendment right to be free from retaliation for commenting on
matters of public concern, even when the employment decision is made by members
of the local Board of Education. Id. at 571-72. In Pickering, members of the Board
of Education voted to discharge a public school teacher because he spoke in
opposition to a bond issue they supported. The Court held that the school board
violated the teachers’ First Amendment right to free speech by dismissing him in
retaliation for his public criticism. Id. at 574-75. Although Ms. Campbell was not
terminated, as in Pickering, it is clearly established that failure to renew a contract or
to rehire an employee constitutes adverse action to support a First Amendment
retaliation claim. See Umbehr, 518 U.S. at 685; Rutan, 497 U.S. at 76.
In sum, we affirm in part, and reverse in part, and remand. We reverse the
district court’s dismissal of the Teachers’ CBA breach of contract claim as to the
evaluation provision and the requirement that the Board follow state laws and
regulations unrelated to the TDPA. We also reverse the dismissal of Ms. Campbell’s
§ 1983 First Amendment claim. As regards the remainder of the issues raised, we

Outcome: Affirmed

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