                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 13 2004
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 BRENDA LANDER,

          Plaintiff-Appellant,

 v.                                                    No. 02-1160
                                                      (D. Colorado)
 SUMMIT COUNTY SCHOOL                             (D.Ct. No. 01-M-2161)
 DISTRICT, JANIS BUNCHMAN, and
 WES SMITH,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, HOLLOWAY, and McWILLIAMS, Senior
Circuit Judges.


      This case is an appeal from a dismissal under Fed. R. Civ. P. 12(b)(6) in a §

1983 suit alleging violation of First Amendment Rights. Plaintiff, Brenda Lander,

sued the Summit County Colorado School District and Frisco Elementary

Principal Janis Bunchman, and Superintendent Wes Smith in their individual

capacities, alleging her employment contract was not renewed and she received


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
false and derogatory employment references in violation of her First Amendment

right to speak on matters of public concern. The district court dismissed her First

Amendment claim concluding her statements did not involve matters of public

concern, and it declined to exercise supplemental jurisdiction over the state law

claims. Lander thinks the district court erred in dismissing her complaint and,

alternatively, argues it should have allowed her to amend.

      For the reasons detailed below, we find the district court erred in

concluding Lander’s statements did not pertain to a matter of public concern.

Accordingly, we REVERSE the grant of summary judgment for the defendants.



                                         I

                                    Background



      Plaintiff Brenda Lander (Lander) was employed as a Library Media

Specialist at Frisco Elementary School, where she taught computer and

technology classes, and managed technological support and the media program.

Appellant App. at 7,8. Her duties included purchasing and monitoring

technological support and technology supplies for the entire school, as well as

coordinating and evaluating media programs. Id. at 8.

      In the Spring of 2000, Frisco Elementary Principal Janis Bunchman


                                        -2-
(Bunchman) imposed a requirement that all media specialists would have to teach

classes through the last day of school. Id. In response, and on behalf of the

media specialists, Lander complained to the administration and the education

association “that this requirement made it impossible for these teachers to

complete their job duties without working unpaid overtime and that the

requirement was detrimental to the maintenance of school equipment and the

efficient functioning of the school libraries.” Id. According to Lander, her

statements angered Bunchman, who altered Lander’s teaching schedule for the

2000-2001 school year. Specifically, Lander alleged Bunchman required her to

teach “back-to-back half hour classes on Fridays with no breaks or passing

periods between student groups.” Id. In reply, Lander complained to Bunchman

“that half hour lessons were inadequate and would deprive students of a quality

education, but Bunchman refused to amend the schedule.” Id.

      At the beginning of the 2000-2001 school year, Lander reviewed Frisco

Elementary’s technology budget

      for which she was responsible, and noticed that approximately 22%
      of that budget had been spent over the summer without her
      knowledge and in contravention of the consensus of the staff, on out-
      of-date program contracts previously vetoed by the staff, duplicative
      contracts for software support already available at the school, and a
      software upgrade that was not operational on any student computers.

Id. at 9. When she inquired, Lander learned that Bunchman had authorized the

purchase by “a new reading teacher at the school, who was also the wife of a

                                        -3-
sitting school board member.” Id. Lander complained to Bunchman “that the

expenditures were a waste of school resources, in derogation of the decision made

by the faculty, and an indefensible expenditure.” Id.

      Near the close of the 2000-2001 school year, Bunchman informed Lander

she would not recommend the renewal of Lander’s teaching contract for the 2001-

2002 school year. Id. at 12. Lander claims the decision was based on a false

evaluation stemming from a number of things, including her comments on the

technology budget, half-hour technology lessons, and the requirement that media

specialists teach on the last day of school. Id. Superintendent Wes Smith

informed Lander that based solely upon Bunchman’s recommendation, he would

recommend to the school board that her contract not be renewed. Id. After her

contract was not renewed, Lander then interviewed for and was offered two

separate positions in another district. But, according to her complaint, these

offers were revoked after Bunchman and Smith provided false and negative

references. Id. at 14.

      In addressing the School District’s motion to dismiss under Rule 12(b)(6),

the district court noted that the subject of education in general is likely a matter

of public concern, but also recognized the need to look beyond the general subject

matter to the actual statements to see if they were, in fact, focused on matters of

public concern. It concluded they were not and dismissed the complaint.


                                         -4-
Supplemental jurisdiction over her state law claims was declined and the claims

were dismissed without prejudice. 1 Finally, the district court refused her very

generalized motion to amend.



                                         II

                                     Discussion



                                         A

                             First Amendment Claims



      We review de novo the district court’s decision to dismiss Lander’s

complaint under Rule 12(b)(6). Ordinance 59 Ass'n v. U.S. Dep’t of Interior

Secretary, 163 F.3d 1150, 1152 (10th Cir. 1998). We consider the complaint as a

whole, accept all well-pled factual allegations as true, and view those allegations,

and reasonable inferences therefrom, in a light most favorable to the non-moving

party. Sutton, 173 F.3d at 1236; Dill v. City of Edmond, 155 F.3d 1193, 1201

(10th Cir. 1998). Dismissal under “[a] 12(b)(6) motion should not be granted

unless it appears beyond doubt that the plaintiff can prove no set of facts in


      1
       The court reaffirmed its holdings with a one-page written order
incorporating its oral findings and dismissing Lander’s complaint pursuant to
12(b)(6) & 12(b)(1).

                                        -5-
support of [her] claim which would entitle [her] to relief.” Sutton, 173 F.3d at

1236 (citations and quotations omitted). Yet, we need not accept a party’s

conclusory allegations as true. Southern Disposal, Inc. v. Texas Waste Mgmt.,

161 F.3d 1259, 1262 (10th Cir. 1998). Nor may a party “overcome pleading

deficiencies with arguments that extend beyond the allegations contained in the

complaint.” Bauchman for Bauchman v. West High School, 132 F.3d 542, 550

(10th Cir. 1997), cert. denied, 524 U.S. 953 (1998). “Whether speech involves a

matter of public concern is a question of law to be determined de novo.”

Edwards v. City of Goldsboro, 178 F.3d 231, 246 (4th Cir.1999) (citation

omitted).

      “[A] public employer cannot retaliate against an employee for exercising

[her] constitutionally protected right of free speech.” Dill, 155 F.3d at 1201

(citing Connick v. Myers, 461 U.S. 138, 146-47 (1983)). To determine “whether a

public employer's actions impermissibly infringe on free speech rights, we apply

the four-prong test articulated in Pickering v. Bd. of Educ., 391 U.S. 563 (1968).”

Burns v. Board of County Comm'rs of Jackson County, 330 F.3d 1275, 1285-86

(10th Cir. 2003) (footnote omitted).

      First, we must determine whether the employee's speech involves a
      matter of public concern. If so, we then balance the employee's
      interest in commenting upon matters of public concern against the
      interest of the State, as an employer, in promoting the efficiency of
      the public services it performs through its employees. Third, if the
      balance tips in favor of the employee, the employee then must show

                                        -6-
      that the speech was a substantial factor or a motivating factor in the
      detrimental employment decision. Fourth, if the plaintiff establishes
      that speech was such a factor, the employer may demonstrate that it
      would have taken the same action against the employee even in the
      absence of the protected speech.

Finn v. New Mexico, 249 F.3d 1241, 1247 (10th Cir. 2001) (internal citations and

quotations omitted). Here, the sole issue before us is whether, as alleged in her

complaint, Lander’s speech involved a matter of public concern and thereby

satisfied the initial threshold determination of this four-pronged approach. Id. at

1247. If her “speech cannot be fairly characterized as constituting speech on a

matter of public concern, it is unnecessary . . . to scrutinize the reasons for her

discharge [non-renewal].” Saye v. St. Vrain Valley School Dist. RE-1J, 785 F.2d

862, 866 (10th Cir. 1986) (quoting Connick, 461 U.S. at 146).

      “Whether an employee's speech addresses a matter of public concern must

be determined by the content, form, and context of a given statement, as revealed

by the whole record.” Connick, 461 U.S. at 147-48. In determining whether her

speech touched on matters of public concern, we look to “whether the public or

the community is likely to be truly concerned with or interested in the particular

expression, or whether it is more properly viewed as essentially a private matter

between employer and employee.” Edwards v. City of Goldsboro, 178 F.3d 231,

247 (4th Cir.1999) (quoting Berger v. Battaglia, 779 F.2d 992, 999 (4th Cir.1985)

(internal quotation marks omitted)).


                                          -7-
      To qualify as a matter of public concern, the speech in question must do

more than merely fall within a topic that is of general interest to the public; rather

the specific articulation must touch on a matter of public concern. See Burns, 330

F.3d at 1286; Moore v. City of Wynnewood, 57 F.3d 924, 932 (10th Cir 1995).

Yet, “the choice to speak through a private forum, rather than a public one, does

not remove the speech from First Amendment protection.” Lee v. Nicholl, 197

F.3d 1291, 1295 (10th Cir. 1999) (citations omitted).

      In this case, Lander alleges she spoke on two areas of public concern: the

waste of the school’s technology budget and the reduction of classroom time. We

agree because the first subject relates to malfeasance on the part of a public

official and the second relates to the quality of public education.



                                           1

                                 Public malfeasance



      The first subject Lander claims was a matter of public concern was her

criticism of how the school’s technology budget was spent. In her complaint,

Lander states:

             approximately 22% of [the school’s technology] budget
             had been spent over the summer without Plaintiff’s
             knowledge and in contravention of the consensus of the
             staff, on out-of-date program contracts previously

                                         -8-
             vetoed by the staff, duplicative contracts for software
             support already available at the school, and a software
             upgrade that was not operational on any student
             computers.

Appellant’s App. at 9. Lander goes on to provide context for the alleged mis-

allocation of school funds:

             Defendant Bunchman revealed to Plaintiff that she had
             given those monies to a new reading teacher at the
             school, who was also the wife of a sitting school board
             member, and that Defendant Bunchman had allowed the
             board member’s wife to purchase the materials over the
             summer.

Id. In other words, Lander’s complaint was not that the school should have spent

money on software X instead of software Y because software X is better. Rather,

the crux of Lander’s complaint was that Bunchman allowed public funds to be

wasted in order to curry favor with her superior. In other words, Lander was not

complaining of an internal budgetary decision but rather of malfeasance by a

public official.

      It is well established that “Speech which discloses any evidence of

corruption, impropriety, or other malfeasance on the part of city officials, in terms

of content, clearly concerns matters of public import.”   Conway v. Smith, 853

F.2d 789, 796 (10th Cir. 1988). As noted above, Lander’s complaints about the

mis-allocation of school funds regard an allegation of malfeasance by Bunchman

by using school funds to advance her own career. Therefore, Lander’s speech on


                                         -9-
this subject is on a matter of public concern.

      That Lander was complaining of malfeasance by Bunchman rather than a

simple mis-allocation of school funds distinguishes the instant case from that in

Gardetto v. Mason, 100 F.3d 803 (10th Cir. 1996). There, we did hold that

“details of internal budgetary allocations at an institution of public education are

not matters of public concern.” Id. at 814. We applied that classification,

however, only to complaints about how the plaintiff and her staff would be

affected by a reduction in force plan, reasoning that the primary motivation for

the complaint was the plaintiff’s “personal interest in maintaining her staff.” Id.

Importantly, there was never an allegation in that case that a public official was

attempting to use public funds to curry favor, nor an allegation that a public

official was wasting money, as the instant averments state here. See also Schalk

v. Gallemore, 906 F.2d 491, 496 (10th Cir. 1990) (holding that a hospital

employee’s letter is on a matter of public interest when it “implicates the fiscal

policies of the defendant and attempts to disclose waste and wrongdoing”).

      Moreover, that the specific malfeasance by Bunchman may have been

isolated does not remove Lander’s comment from the ambit of public concern. As

we made clear in Conway, “[s]peech which discloses any evidence of . . .

malfeasance on the part of city officials . . . clearly concerns matters of public

import.” Id. (emphasis added). Accordingly, we held, for example, in Burns v.


                                         - 10 -
Bd. of County Comm’rs, 330 F.3d 1275, 1286 (10th Cir. 2003), that a plaintiff’s

statements relating to a single trade of “a Ford pickup for a Chevy pickup” was a

matter of public concern because the plaintiff had reason to believe the trade was

evidence of impropriety on the part of public officials. And, while the First

Amendment claim did not prevail in Connick, nevertheless there in the Court’s

conclusion it was emphasized that the holding was “grounded in our longstanding

recognition that the First Amendment's primary aim is the full protection of

speech upon issues of public concern, as well as the practical realities involved in

the administration of a government office.” 461 U.S. at 154 (emphasis added).



                                            2

                            Quality of public education



      The second subject Lander claims was a matter of public concern was the

requirement by Bunchman that all media specialists teach through the last day of

class. In her complaint, Lander states:

             13.    In late spring 2000, Defendant Bunchman made
             an unprecedented requirement that all media specialists
             teach through the last day of school. On behalf of the
             media specialists, Plaintiff complained to the
             administration and SCEA that this requirement made it
             impossible for these teachers to complete their job
             duties without working unpaid overtime and that the
             requirement was detrimental to the maintenance of

                                          - 11 -
             school equipment and the efficient functioning of the
             school libraries.

Appellant’s App. at 8 (emphasis added). As such, Lander is not complaining of

the effect of the terms of her employment on her but rather the effect upon her

students. Thus, Lander’s complaint pertains to the quality of public education

rather than an internal management decision.

      “Teachers whose speech directly affects the public's perception of the

quality of education in a given academic system find their speech protected [under

the First Amendment].” Maples v. Martin, 858 F.2d 1546, 1553 (11th Cir. 1988);

Hulen v. Yates, 322 F.3d 1229, 1238 (10th Cir. 2003) (citing Maples for the cited

quote). Here, as noted above, Lander’s complaint is that the policy imposed by

Bunchman adversely affects the quality of education provided by the Frisco

Elementary School in preventing necessary maintenance on equipment.

Therefore, Lander’s speech on this subject was on a matter of public concern.

See Gardetto, 100 F.3d at 813 (noting that complaints about decisions that “affect

the basic functions and missions” of a public educational institution do constitute

“speech on matters of public concern”).

      Moreover, that the general public may show apathy toward this issue is of

no import in determining whether this issue is of public concern. As Judge

Posner forcefully stated, the protections of the First Amendment are not limited to

“matters of transcendent importance, such as the origins of the universe or the

                                        - 12 -
merits of constitutional monarchy” but encompass all “matters in which the public

might be interested.” Dishnow v. Sch. Dist. of Riblake, 77 F.3d 194, 197 (7th Cir.

1996). “That the public was not large, that the issues were not of global

significance, and . . . not . . . vital to the survival of Western civilization [does]

not place [] speech outside the orbit of [First Amendment] protection.” Id.

       This is not to say, however, that the relative importance of the speech is

irrelevant. Rather, the importance of the speech is properly considered in the

second step of the analysis utilized to assess a First Amendment claim “wherein

the employee's interest in free comment upon matters of public concern is

weighed against the state's interest in the efficiency of its public services.”

Pickering v. Board of Educ. of Township High School Dist. 205, Will County, Ill.,

391 U.S. 563, 568 (1968). Such a balancing test, however, is inappropriate in

evaluating a dismissal under Fed. R. Civ. P. 12(b)(6) as no countervailing state

interest could have been alleged since the claim is evaluated solely upon the

pleadings of the plaintiff. Therefore, the relative importance of Lander’s speech

is irrelevant to this appeal.




                                          - 13 -
                                         B

                                 Motion to Amend



      As an alternative argument, Lander argues that we should allow her to

amend her complaint were we to find the district court’s dismissal was not in

error. As concluded above, we find the district court did err in dismissing

Lander’s claim and, therefore, need not address her request to amend her

complaint.



                                        III

                                    Conclusion



      For the reasons detailed above, we hold that Lander’s speech did

encompass two points of public concern: malfeasance of a public official and

harm to the quality of public education. Accordingly, we REVERSE the district

court’s dismissal of Lander’s claim pursuant to Fed. R. Civ. P. 12(b)(6).


                                                   Entered for the Court



                                                   William J. Holloway, Jr.
                                                   Circuit Judge


                                       - 14 -
02-1160 Lander v. Summit Co. School Dist.
O’BRIEN, dissenting.

      As to all of Lander’s claims, perspective is critical. Infinite is the universe

of issues that could, and perhaps do, affect education. Within that universe is a

subset of factors, almost infinite, that may impact the performance of teachers,

staff and administrators. But not every factor does, or should, engage the attention

of the public. Looming personal issues are not of equal dimension to a distant

observer. Often they are regarded by the wider audience as simply banal; lost in

the flood of daily decisions necessary to school administration. To the discerning

eye, Lander may even be correct, and Bunchman wrong, on the merits of any one

or all of these issues, but even being right does not elevate this debate from the

principal’s office to the boardroom, the pulpit or the commons.

      We can push 12(b)(6) inferences to their outer limits, but doing so does not

inform the debate. Lander’s quarrels with the school administration are “more

properly viewed as essentially a private matter between employer and employee.”

Edwards v. City of Goldsboro, 178 F.3d 231, 247 (4th Cir.1999) (quotation and

citation omitted). So, I dissent.

      1.     Technology Budget

      Lander contends her statements regarding the waste of technology resources

touched on a matter of public concern—harmful and wasteful spending of

technology resources. The majority characterizes her claim as a comment on

malfeasance. However, we do not look solely to the content of the statement, but
“focus[] on the motive of the speaker in analyzing whether the speech qualifies as

a matter of public concern, i.e., whether the speech was calculated to disclose

misconduct or dealt with only personal disputes and grievances with no relevance

to the public interests. Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988); see

also Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir. 1987) (“while the content

of [plaintiff’s] communications touched upon an issue of public concern generally

. . . such speech stands unprotected from employer scrutiny when uttered in the

pursuit of purely private interests”); Terrell v. Univ. of Texas Sys. Police, 792

F.2d 1360, 1362 (5th Cir. 1986) (“the mere fact that the topic of the employee’s

speech was one in which the public might or would have had a great interest is of

little moment”); Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir. 1985) (citing

Connick v. Meyers, 461 U.S. 138 (1983) (the Connick test “requires us to look at

the point of the speech in question: was it the employee’s point to bring

wrongdoing to light? Or to raise other issues of public concern, because they are

of public concern? Or was the point to further some purely private interest?”).

As a result, while speech concerning the use of public funds generally touches

upon a matter of public concern, “criticisms of internal management decisions

[and] . . . the details of internal budgetary allocations at an institution of public

education are not matters of public concern.” Gardetto v. Mason, 100 F.3d 803,

813-14 (10th Cir. 1996) (quotations and citations omitted).


                                           -2-
      Allowing all reasonable inferences, the content, context, and form of

Lander’s speech reveals it to address only a narrow internal management decision

which affected her personally. Specifically, she challenged internal budgetary

allocations made without her blessing and contrary to the wishes of some of the

affected faculty. The majority attaches much importance to Bunchman’s possible

motivation in allowing the spouse of a school board member to expend the funds.

But it was Bunchman, not Lander, who brought this fact to light—and Lander’s

Complaint makes no reference to malfeasance.

      More important, Lander does not demonstrate, or even allege, the actual

amount of supposedly squandered funds, the amount of the technology budget, or

the relationship the technology budget bears to the budget of the school or

district. Significantly, she does not claim systemic or even widespread waste,

merely one isolated incident of intense concern to her and perhaps a few others

who felt their ox was being gored. Criticism of internal budgetary decisions,

which are not even alleged to have substantially or detrimentally affected the

overall school budget or the welfare of the children, is micro, not macro,

economics. Litigating minutia is probably more debilitating to the school than the

supposed wrongs which motivated the litigation.

      The roles of the parties also impact the analysis. Lander was an employee

with specific responsibilities and input regarding technology, a role which


                                         -3-
distinguishes her from a concerned citizen. See also Craven v. Univ. of Colo.

Hosp. Auth., 260 F.3d 1218, 1226-27 (10th Cir. 2001) (citing Connick, 461 U.S.

at 147) (speech was not a matter of public concern as “Plaintiff was obviously

speaking as an employee--not as a citizen.”). Not “all matters which transpire

within a government office are of public concern . . . such a presumption would

mean that virtually every remark . . . would plant the seed of a constitutional

case.” Id. (citation and quotations omitted). Consequently, the purpose of

Lander’s complaint regarding the technology budget was not to discuss a matter

of public concern, but to challenge the principal on matters of internal budgeting

that circumvented Lander. An employee’s speech can form the basis of a civil

rights suit only “when the employee spoke ‘as a citizen upon matters of public

concern’ rather than ‘as an employee upon matters only of personal interest.’”

United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 466, (1995),

quoting Connick, 461 U.S. at 147.

      2.     Reduction of Classroom Time

      Lander was unhappy about Bunchman’s requirement that she teach back-to-

back half-hour classes on Fridays, with no breaks or passing periods between

student groups. She complained “that half hour lessons were inadequate and

would deprive students of a quality education . . . .” (Appellant’s App. at. 8.)

Lander maintains this statement touched on a matter of public concern, as it


                                         -4-
raised issues regarding the proper instruction and/or learning of the children in a

public school.

      Because of the public’s general and abiding interest in education, the

notion that this statement has such impact offers superficial appeal. However, as

stated earlier, we must look beyond the general topic of public education to

review Lander’s actual statements. Moore v. City of Wynnewood, 57 F.3d 924,

932 (10th Cir 1995). Much like our determination in Saye v. St. Vrain School

Dist. RE-1, the length of a technology class is not a matter likely to capture the

imagination of general public. 785 F.2d 862, 866 (10th Cir. 1986) (allocation of

aide time among teachers does not give rise to public concern). Lander’s

statement was that of an employee voicing a personal grievance with her

employer—her work schedule. That is not the public’s concern. See Edwards,

178 F.3d at 247. Moreover, the coincidence of the “children’s needs” and

Lander’s convenience is notable.

      3.     Working the Last Day of Class

      In response to Bunchman’s requirement that all media specialists teach

classes through the last day of school, Lander complained to the administration

and education association on behalf of the media specialists, “that this

requirement made it impossible for these teachers to complete their job duties

without working unpaid overtime and that the requirement was detrimental to the


                                         -5-
maintenance of school equipment and the efficient functioning of the school

libraries.” (Appellant’s App. at 8.) She asserts this statement also touched on a

matter of public concern as it addressed inefficiency, waste of resources, and

employee performance.

      Looking at the context, form, and content of Lander’s statement, it clearly

involved a grievance about the terms and conditions of employment. Allegations

of an internal personnel issue involving a few employees and a narrow issue is

simply not a matter of public concern. See also Finn v. New Mexico, 249 F.3d

1241, 1247 (10th Cir. 2001) (distinguishing between statements of public

concern and those of personal concern). The fact that her statement was made on

behalf of other media specialists helps her not a whit. To the contrary, it supports

the view that this was an internal personnel matter, and a minor one. While it

may have been of legitimate, perhaps intense, concern to the media specialists, it

was personal to them, internal to the school and of limited reach. To hold

otherwise is to allow any public employee’s grievance with his/her workload or

schedule to rise to a matter of public concern, as long as the pleadings alleged a

resulting inefficiency or detriment to the public services involved.

      I would affirm the decision of the district court.




                                         -6-
