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

                             FOR THE TENTH CIRCUIT                        November 6, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
KENA UTTER; AUBREE HOLSAPPLE;
DARA CAMPBELL,

      Plaintiffs - Appellants,

v.                                                         No. 17-7002
                                                 (D.C. No. 6:16-CV-00182-RAW)
AMIE ROSE COLCLAZIER; JACK                                 (E.D. Okla.)
CADENHEAD; MICKEY UPTON;
INDEPENDENT SCHOOL DISTRICT
1-01 OF SEMINOLE COUNTY, STATE
OF OKLAHOMA, a/k/a SEMINOLE
SCHOOL DISTRICT,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT *
                         _________________________________

Before BRISCOE, O’BRIEN, and BACHARACH, Circuit Judges.
                   _________________________________

      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


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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.

                                    BACKGROUND

       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

Meeting).




       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.

                                           2
       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.

                                           3
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.



                                            4
       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.

                                            5
                                       DISCUSSION

         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.

2010).



                                             6
      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




                                            7
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.

                                              8
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.



                                           9
       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,

                                            10
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



                                           11
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,

                                           12
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.


                                          13
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

                                          14
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’

                                           15
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.

                                            16
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.

                                           17
      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).




                                             18
      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

omitted).

      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.



                                            19
          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

agree.

         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

                                            20
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.



                                          21
      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

                                           22
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

affirm.


                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Circuit Judge




                                            23
