                          UNITED STATES COURT OF APPEALS
Filed 5/29/96
                                FOR THE TENTH CIRCUIT



    WALTER RAY GRABOW,

                 Plaintiff-Appellant,

    v.                                                        No. 95-6316
                                                        (D.C. No. CIV-94-1519-L)
    INDEPENDENT SCHOOL DISTRICT                               (W.D. Okla.)
    NO. I-008, also known as Seiling Public
    Schools, of Dewey County, Oklahoma;
    BOBBY D. RUSSELL, in his official
    capacity as Superintendent of Independent
    School District No. I-008 of Dewey
    County, Oklahoma; MONTE WION;
    CHARLOTTE BILLINGS; BRUCE
    BENSCH; JANET HEDRICK; JAMES
    VOGELI, in their official capacities as
    members of the Board of Education of
    Independent School District No. I-008 of
    Dewey County, Oklahoma; CHARLES
    OAKES, in his official capacity as
    Secondary Principal for the Seiling Public
    Schools,

                 Defendants-Appellees.




                                 ORDER AND JUDGMENT*




*
       This order and judgment is not binding precedent, except under the doctrines of law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.
Before PORFILIO, JONES,** and TACHA, Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this appeal.

See Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted

without oral argument.

       Plaintiff Walter Ray Grabow appeals from a summary judgment in favor of

defendants. We affirm.

       Plaintiff was employed as a vocational agricultural instructor by the Seiling Public

Schools from 1981 until 1993. He obtained tenure in 1984 under state law. He was

terminated effective June 30, 1993, pursuant to the Seiling Public Schools reduction in force

policy, after the State Department of Vocational and Technical Education withdrew

certification of and funding for one of the school district’s vocational agriculture programs.

Plaintiff filed this action alleging claims for discrimination in violation of the Americans

With Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213; retaliatory discharge; discharge

in violation of the Due Process clause; breach of contract; and discharge in violation of

public policy. Defendants moved for and were granted summary judgment.


**
        Honorable Nathaniel R. Jones, Senior Circuit Judge, United States Court of Appeals
for the Sixth Circuit, sitting by designation.

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         We review the grant of summary judgment de novo, applying the same standards as

the district court. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995).

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories,

admissions on file, and affidavits, if any, show an absence of a genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law. Id.

         Plaintiff first contends the district court erred in holding that Oklahoma’s Teacher Due

Process Act of 1990, Okla. Stat tit. 70, §§ 6-101.20 to -101.30, does not apply to the

termination of a tenured teacher pursuant to a local reduction in force policy. However, the

only procedures he contends he was denied were notice and a meaningful opportunity to be

heard prior to his termination. Because plaintiff had a protected property interest in his job

and was terminated pursuant to a reduction in force that he alleged was a sham aimed

particularly at him, he was entitled to such procedures under the Due Process clause. See

West v. Grand County, 967 F.2d 362, 368 (10th Cir. 1992). Thus, as plaintiff had a

constitutional right to these procedures, we need not address whether he had a statutory right

to them. We turn to whether he was provided with adequate notice and an opportunity to be

heard.

         It is undisputed that plaintiff received a letter from the Seiling School Board president

stating that the Board voted on March 29, 1993, to “recommend the reduction of one

vocational agriculture program and your position as a vocational agriculture instructor,” and

that the “determination was in accordance with our local reduction in force policy and the


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recommendation to withdraw certification and funding by the State Department of

Vocational and Technical Education.” Appellant’s App. Vol. I at 102. He was notified that,

according to state law, he had a right to a hearing.

       Plaintiff contends this letter notified him that the termination had been made, and he

therefore did not receive pretermination notice and an opportunity to be heard. He notes the

Board was the final decision maker and there was no one to whom to recommend his

termination. He also argues the minutes of the March 29, 1993 Board meeting showed the

Board had already voted to terminate him.

       The minutes of the March 29 meeting show that the Board voted “to re-employ all

certified teachers with the exception to recommend reduction of one Vocational Agriculture

Program and Mr. Walter Grabow as a Vocational Agriculture Instructor for the 1993-94

school year.” Id. at 92. The minutes of the April 26, 1993 Board meeting show that,

following a hearing concerning plaintiff’s termination, the Board “approve[d] the

Superintendent’s recommendation to terminate Mr. Walter Grabow effective June 30, 1993.”

Id. at 110. Board members Bruce Bensch, Charlotte Billings, and Janet Hedrick testified

that the Board received a recommendation to terminate plaintiff from the superintendent on

March 29, but did not vote to terminate plaintiff at that time. Id. at 293-94, 300-01, 303, 306,

308-09. Plaintiff’s contention that this evidence is insufficient to entitle defendants to

summary judgment because Charlotte Billings’ testimony obviously was coached is to no

avail. A plaintiff cannot rely solely on the possibility that the factfinder might not believe


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the evidence, but rather must “present affirmative evidence in order to defeat a properly

supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

257 (1986).

       We disagree that the letter to plaintiff and minutes of the March meeting establish that

the decision to terminate plaintiff was made at the March hearing. A vote to recommend a

termination is not the same as a vote to terminate, notwithstanding the fact that there was no

one to whom a recommendation could be made. The letter and minutes are at most

ambiguous. However, this ambiguity was cleared up by the undisputed testimony of the

Board members that they did not terminate plaintiff until after his hearing.

       Plaintiff contends the notice misled him to believe he had already been terminated,

and it therefore was ineffective. The inquiry for due process purposes is whether the notice

apprised plaintiff of, and permitted adequate preparation for, the impending hearing.

Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14 (1978). While plaintiff argues

on appeal that the misleading notice led him to fail to obtain legal counsel or to make other

active attempts to protect his rights, the evidence submitted shows that he was represented

by the Oklahoma Education Assocation at the hearing and that his representative presented

a defense and cross-examined witnesses. He submitted no evidence on summary judgment

showing that he would have obtained an attorney or presented any different case if the notice

had more clearly informed him that the termination decision had not yet been made. We

conclude that he was not denied due process.


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       Turning to the ADA claim, plaintiff first contends the district court erroneously

believed there had to be a causal connection between plaintiff’s disability and his termination

to establish the claim. We disagree. The district court was well aware that plaintiff’s

contention was that defendants “were attempting to make his work conditions so unbearable

that he would quit.” Appellant’s App. Vol. II at 572.

       Plaintiff argues there is a factual dispute as to whether defendants reasonably

accommodated his disability or intentionally created a hostile environment in an attempt to

constructively discharge him. To qualify for relief under the ADA, the plaintiff must

establish that he is a disabled person within the meaning of the ADA; that, with or without

reasonable accommodation, he is able to perform the essential job functions; and that the

employer acted adversely to him because of his disability. See White v. York Int’l Corp., 45

F.3d 357, 360-61 (10th Cir. 1995).1 Reasonable accommodation is an issue only if the

individual is not able to perform the essential functions of the job. Id. at 361-62.

       Plaintiff’s complaint alleged that, “despite his disability, [he] is capable of performing

all essential functions” of his job. Appellant’s App. Vol. I at 3. Thus, reasonable

accommodation is not an issue. Further, plaintiff cannot establish a constructive discharge

claim because he did not quit. See Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1534 (10th

Cir. 1995). Finally, plaintiff conceded he had no evidence, other than his own belief, that



1
       Defendants conceded for purposes of the summary judgment motion that plaintiff was
a disabled person under the ADA. Appellant’s App. Vol. I at 173.

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there was a causal connection between his disability and having his desk removed, or being

deprived of his own classroom so that he had to change classrooms and carry his teaching

materials with him at least four times a day. Appellant’s App. Vol. I at 207-08. Defendant

Russell testified that he took no actions against plaintiff because of plaintiff’s disability. Id.

at 266. Plaintiff’s unsupported allegations do not create a fact question for the jury on

causation, and summary judgment therefore was appropriately granted on the ADA claim.

See Smith v. Upson County, 859 F. Supp. 1504, 1515 (M.D. Ga. 1994), aff’d, 56 F.3d 1392

(11th Cir. 1995).

       The next issue is whether the district court erred in granting summary judgment to

defendants on plaintiff’s retaliatory discharge claim. To prevail on such a claim, a public

employee must show he engaged in speech protected by the First Amendment, and that the

protected speech was a motivating factor in an adverse employment decision. Hom v.

Squires, 81 F.3d 969, 974 (10th Cir. 1996).

       With regard to his claim that he was terminated for speaking out about school

operations, we need not address whether this was protected speech as we conclude plaintiff

failed to show a causal connection between his speech and dismissal. Plaintiff argues that

whether protected conduct was a motivating factor is always a question of fact to be

determined by a jury, citing Conaway v. Smith, 853 F.2d 789, 796 n.8 (10th Cir. 1988).

While Conaway does state that the question of motivation is one of fact for the jury, this does

not mean that the question must go to the jury if the plaintiff fails to respond to a summary


                                                7
judgment motion with evidence showing the existence of a material issue of fact as to

motivation. We held in Hom that a plaintiff’s belief that he was dismissed in retaliation for

exercising protected speech is insufficient, by itself, to defeat a summary judgment motion

and send the case to the jury. 81 F.3d at 974-75. Plaintiff had to provide more than his belief

to send the case to the jury on the issue of motivation.

       We have recognized that a retaliatory motive can be inferred from an adverse

employment action when there is a close temporal proximity between the protected activity

and the adverse action. Smith v. Maschner, 899 F.2d 940, 948-49 (10th Cir. 1990).

Plaintiff’s latest allegedly protected speech concerning school operations took place in May

1992. He was terminated in April 1993, almost a year later. This is not the kind of close

temporal proximity that raises an inference of a retaliatory motive. See id. at 948 (finding

close temporal proximity where adverse action immediately followed protected activity); see

also Ramirez v. Oklahoma Dep’t of Mental Health, 41 F.3d 584, 596 (10th Cir.

1994)(retaliatory motive can be inferred where adverse action followed protected activity by

one and one-half months); cf. Hom, 81 F.3d at 975 (no inference where protected activity

occurred in 1987-88 and plaintiff terminated in 1989); Candelaria v. EG&G Energy

Measurements, Inc., 33 F.3d 1259, 1262 (10th Cir. 1994)(no inference where adverse action

followed protected activity by three years).

       Plaintiff also claims he was terminated in retaliation for filing an EEOC charge in

February 1993. A public employee has no First Amendment claim for actions taken in


                                               8
retaliation for filing a lawsuit unless the lawsuit involves a matter of public concern. Zorzi

v. County of Putnam, 30 F.3d 885, 896 (7th Cir. 1994). The EEOC charge alleged that

plaintiff was denied equipment necessary for his classes and excluded from school functions

because of his disability. As such, it did not relate to a matter of political, social, or other

concern to the community, but rather involved only “matters of internal departmental affairs

and personal interest.” Hom, 81 F.3d at 974. Plaintiff cannot establish a First Amendment

claim for retaliation based on filing an EEOC charge.

       Finally, plaintiff contends that, because the district court’s rulings on his other claims

were erroneous, its grant of summary judgment on his state law claims likewise was

erroneous. As we have concluded the district court’s rulings on the federal claims were not

in error, we reject plaintiff’s contention that its grant of summary judgment on the state law

claims was erroneous.

       The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.



                                                           Entered for the Court



                                                           Deanell Reece Tacha
                                                           Circuit Judge




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