       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Leary et al. v. Daeschner                   No. 01-6118
    ELECTRONIC CITATION: 2003 FED App. 0409P (6th Cir.)
                File Name: 03a0409p.06                    Daniel T. Taylor III, Louisville, Kentucky, for Appellants.
                                                          Michael Keith Kirk, WYATT, TARRANT & COMBS,
                                                          Louisville, Kentucky, for Appellee.
UNITED STATES COURT OF APPEALS
                                                             MOORE, J., delivered the opinion of the court, in which
              FOR THE SIXTH CIRCUIT                       CLAY, J., joined. BATCHELDER, J. (pp. 37-42), delivered
                _________________                         a separate dissenting opinion.

 MARY ELIZABETH LEARY and X                                                   _________________
 GLENDA H. WILLIAMS,               -
                                                                                  OPINION
          Plaintiffs-Appellants, -                                            _________________
                                   -  No. 01-6118
                                   -
            v.                      >                        KAREN NELSON MOORE, Circuit Judge. Plaintiffs-
                                   ,                      Appellants Mary Elizabeth Leary (“Leary”) and Glenda H.
                                   -                      Williams (“Williams”) (collectively “Plaintiffs”), previously
 STEPHEN DAESCHNER,                -                      school teachers at the Atkinson Elementary School
           Defendant-Appellee. -                          (“Atkinson”) in Jefferson County, Kentucky, appeal the
                                   -                      following district court orders: (1) the July 31, 2000 order
                                   -                      granting summary judgment in favor of Defendant-Appellee
                                  N                       Superintendent Stephen Daeschner (“Daeschner”) and thereby
       Appeal from the United States District Court       dismissing Plaintiffs’ First Amendment retaliation claims;
    for the Western District of Kentucky at Louisville.   and (2) the June 13, 2001 order denying Plaintiffs’ motion to
  No. 99-00465—Charles R. Simpson III, District Judge.    amend their complaint, dismissing their due process claims,
                                                          and dismissing all remaining claims. In addition, Plaintiffs
               Argued: January 30, 2003                   argue that the district court failed to provide them a trial by
                                                          jury in violation of the Seventh Amendment. Plaintiffs allege
        Decided and Filed: November 19, 2003              in their complaint and amended complaint that they were
                                                          transferred from Atkinson to another elementary school in the
 Before: BATCHELDER, MOORE, and CLAY, Circuit             same district in retaliation for exercising their First
                  Judges.                                 Amendment rights and that the last-minute hearing violated
                                                          their right to due process. The district court granted summary
                  _________________                       judgment to Daeschner on Plaintiffs’ First Amendment claims
                                                          because Plaintiffs failed to meet their burden of proof for
                       COUNSEL                            establishing a First Amendment violation. The district court
                                                          also denied Plaintiffs’ motion to amend their previously
ARGUED: Daniel T. Taylor III, Louisville, Kentucky, for   amended complaint to add a demand for monetary relief
Appellants. Michael Keith Kirk, WYATT, TARRANT &          because the deadline for filing amended pleadings had passed
COMBS, Louisville, Kentucky, for Appellee. ON BRIEF:      and Plaintiffs failed to show good cause excusing this late

                            1
No. 01-6118                    Leary et al. v. Daeschner        3    4       Leary et al. v. Daeschner                            No. 01-6118

attempt to amend. The district court announced that Plaintiffs       out, on behalf of themselves and others, about issues affecting
cannot reformulate their due process claims for injunctive           Atkinson, such as student discipline. Administrators at
relief as monetary damages claims based on breach of the             Atkinson viewed Plaintiffs differently, stating that they were
Collective Bargaining Agreement (“CBA”). Finally, the                neither dedicated leaders nor supportive of the administration,
district court denied Plaintiffs’ Rule 59(e) motion to set aside     and that they resisted positive change.1
or vacate the decision granting summary judgment in
Daeschner’s favor because the Plaintiffs did not provide the           Exacerbating Atkinson’s academic woes were its divisive
court with any new evidence justifying such a decision.              faculty and its glaring student-discipline problem. Because
                                                                     the Atkinson faculty was not cohesive, the school struggled
   We now REVERSE the district court’s grant of summary              to make decisions on everything from reading-program
judgment to Defendant on Plaintiffs’ First Amendment claims          selection to curriculum choices. From the administration’s
because there is a genuine issue of material fact as to whether      perspective, too many academic decisions were made
Plaintiffs’ transfers were in retaliation for their protected        individually rather than collectively as an institution. Strong
speech, and we REMAND for further proceedings. However,              faculty commitment to particular programs developed which
we AFFIRM the district court’s denial of Plaintiffs’ motion          made it difficult for the administration to suggest alternative
for leave to amend because Plaintiffs failed to show good            approaches. The long-standing student discipline issues
cause for their failure to amend their complaint earlier and         concerned teachers school-wide. Some teachers, such as
Defendant would suffer prejudice by allowing this                    Leary, were vocal in their complaints about discipline2 and
amendment which would require the reopening of discovery             took action by compiling signatures on a petition that
at this late stage of the proceedings. We also conclude that         proposed changes to Atkinson’s discipline policies.3
the district court did not err when it failed to grant Plaintiffs’
motion for a jury trial because the only claims remaining              Under Principal LaDita Howard’s (“Howard”) leadership,
demand injunctive relief.                                            Atkinson set out to change its poor reputation and
                                                                     institutional problems by embracing new programs and
                     I. BACKGROUND                                   procedures to improve academic success. One such program
A. Factual History
                                                                         1
  Plaintiffs were school teachers at Atkinson, a troubled                  In addition, testimony revealed that Leary intimidated other teachers
public elementary school in Jefferson County, Kentucky,              and behaved unprofessionally in the classroom. Williams, on the other
consistently producing low performance test scores and               hand, constantly questioned the principal’s authority and decisions and
                                                                     failed to participate in meetings and other activities.
placing in the lowest range for Kentucky public schools.
Leary taught special-education students for sixteen years at             2
                                                                           A numb er of A tkinson teache rs testified tha t they also were vocal in
Atkinson, while Williams, a fourteen-year veteran, taught            their comp laints regarding discipline. In Leary’s opinion, the degree of
reading to “at risk” children, part-time, in a program called        her protests sets her ap art from other vo cal teachers.
Reading Recovery. Williams split her teaching time with her
                                                                         3
responsibility as the Jefferson County Teachers Association                At the time of Leary’s testimony, the petition had been signed and
(“JCTA”) representative for Atkinson. Plaintiffs’ fellow             submitted to the administration two or three years earlier. Once
teachers viewed Plaintiffs as staff leaders who often spoke          Atkinso n’s discipline committee received the petition, it proposed
                                                                     discipline policies and put a discipline procedure in place.
No. 01-6118                      Leary et al. v. Daeschner         5    6       Leary et al. v. Daeschner                          No. 01-6118

involved what Jefferson County Public Schools (“JCPS”)                  model.”5 Meanwhile in April 1999, Howard gave notice that
called Dialogue Teams. These teams, comprised of district-              she was resigning as Atkinson’s principal at the end of the
level administrators, would meet with a school’s faculty and            school-year. This resignation sparked discussions between
principal to discuss plans for improvement and to evaluate              Meriweather and her Dialogue Team to anticipate the needs
success. The particular team involved with evaluating                   of Atkinson in the wake of Howard’s departure. In addition
Atkinson was headed by Assistant Superintendent for District            to the recruitment and retention of a talented principal, the
Wide Instruction, Freda Meriweather (“Meriweather”), whose              team believed that faculty changes also were necessary to
primary responsibilities consisted of supervising the JCPS              ensure support for the school’s chosen principal and new
elementary-school principals and developing school                      programs: “Success for All” and the ECE “collaborative
improvement initiatives.4 One of the team’s first tasks                 model.” Both programs required faculty support: “Success
involved evaluating the three reading programs in use at                for All” needed a high percentage of faculty acceptance
Atkinson and then recommending to Howard and her staff                  before a grant would issue, and the “collaborative model”
that one program be used consistently throughout the school.            required substantial backing because it involved a drastic
Ultimately, the school accepted this advice and chose to reject         change. The Dialogue Team concluded that four or five
all other reading programs in favor of the “Success for All”            teachers would need to be transferred before the start of the
program.                                                                1999 school-year.6
  Atkinson’s academic troubles allowed it to qualify under                 After the Dialogue Team made this decision to transfer
the Kentucky Education Reform Act (“KERA”) to receive a                 teachers, Meriweather asked Howard and Bowlds each to
Distinguished Educator or “Highly Skilled Educator,” a                  compose a list of four to five teachers that they recommended
school-district employee with a proven record of success in             for transfer because they thought the teachers would resist
aiding troubled schools. Between 1998-99, Meriweather                   change and progress at Atkinson. Howard’s list did not
enlisted the help of Distinguished Educator Nancy Bowlds                include the current Plaintiffs; Bowlds’s list, however,
(“Bowlds”) to work with Atkinson’s faculty and principal                included Leary. After Meriweather received Howard’s and
over an extended period of time and advise them of how the              Bowlds’s lists, Meriweather called Howard to determine
school’s academic performance might be improved.                        whether she agreed with Bowlds that Leary belonged on the
                                                                        list. Howard agreed, allowing Leary to be added to her list
  In the spring of 1999, Atkinson contacted Dr. Sharon                  because Howard believed that Leary, the ECE-team leader,
Davis, Director of Exceptional Child Education (“ECE”), to
evaluate the ECE programs designed for the special education
students. The evaluation was completed and resulted in a
recommendation for Atkinson to adopt the “collaborative
                                                                            5
                                                                              The “collaborative model” requires both regular and ECE-
                                                                        curriculum students to be taught together in one classroom.

                                                                            6
                                                                              The Dialogue Team considered changing the entire Atkinso n staff,
                                                                        but ultimately concluded that only a few chosen teachers needed to be
    4
                                                                        transferred in order to create a climate of change so that the long-standing
     Additional team m emb ers were Bill Eckels (“Eckels”), the         and unsuccessful education programs could be dropped and new programs
Executive Director of Human Reso urces, and Superintendent Daeschner.   embraced.
No. 01-6118                        Leary et al. v. Daeschner            7    8       Leary et al. v. Daeschner                            No. 01-6118

would not embrace the new “collaborative model.”7 Bowlds                     school district.” Joint Appendix (“J.A.”) at 32 (Compl. for
included Leary on her initial list for a variety of reasons, most            Inj. Relief, Attach. A).8
important of these was Leary’s failure to accept leadership by
attending monthly district meetings even though she was the                  B. Procedural History
ECE-team leader. In addition, Leary was accused of yelling
at students, fellow teachers, and administrators.                              The Plaintiffs filed their original suit under 42 U.S.C.
                                                                             § 1983 on July 16, 1999, requesting a preliminary injunction,
  Once Meriweather learned that Williams intended to return                  permanent injunction, and declaratory relief on the basis that
for the 1999-2000 school-year, she contacted Howard and                      Daeschner violated their right to freedom of speech under the
Bowlds again and asked if they agreed that Williams also                     First Amendment and their right to procedural due process
should be on the transfer list. Both Bowlds and Howard                       under the Due Process Clause. Plaintiffs advanced a theory
agreed that Williams was a proper candidate for transfer                     that they were transferred because “they were vocal and
because: (1) she was in a leadership position but failed to                  complained about various issues” involving discipline and
lead, (2) she failed to participate in a grant-writing process for           substitute teachers. Appellee’s Br. at 20; Appellants’ Br. at
an early-literacy program, and (3) she continuously                          8-10. As evidence, the Plaintiffs referenced a petition which
questioned the principal’s authority, decisions, and judgment.               they previously signed and presented to Atkinson’s School-
Moreover, Williams’s status as a part-time employee made                     Based Decision Committee9 demanding change in the
her a desirable candidate for transfer.                                      administration’s student-discipline policies, see J.A. at 33
                                                                             (Compl., Attach. B); a list of questions they raised regarding
   These proposed transfers were supplied to the Dialogue                    the principal’s authority; and their complaints about “hallway
Team, which then selected five teachers to transfer; amongst                 committee meetings” where staff members made business
those selected were Leary and Williams. These names were                     decisions for the school without following proper protocol.
then delivered to Daeschner as Superintendent, and he gave                   Plaintiffs’ evidence also tended to show that they were
the final approval. At the close of the1998-99 school-year,                  considered leaders among the faculty for vociferously
Bowlds delivered letters to Leary, Williams, and three other                 expressing their disagreement with Atkinson’s administration.
teachers that indicated that they would be transferred in the                In addition, Williams argued that her role as JCTA
upcoming year pursuant to section D of the CBA between the
JCTA and the Jefferson County Board of Education. Section
                                                                                 8
D in the CBA read: “[t]he Superintendent or designee for                           Eckels states that a Sectio n D tra nsfer is no t a disciplinary measure
good cause and extenuating circumstances will execute                        and has b een used previously in similar situations.
transfers as may be necessary for the efficient operation of the                  W e have p erson ality conflicts between individuals in a building.
                                                                                  Best interest of the build ing and the instructional program and
                                                                                  the building for one of the individuals to be moved to another
                                                                                  building. We’ve had exam ples where individuals disagreed with
                                                                                  the instructional program or proposed instructional programs
                                                                                  going into a building, and we have Section D’ed the individual
                                                                                  hopefully to a program where their philosophy fits better.
    7                                                                        J.A. at 209 (Eckels Test.).
      Howard testified that Leary expressly declined to implement the
“collaborative model” in her classroom. Interestingly, when Leary was            9
transferred she requested to be placed in a “collaborative model” program.        This committee functioned as a school-governance board and
Joint Appendix (“J.A.”) at 335 (Leary Test.).                                handled solely Atkinson issues.
No. 01-6118                          Leary et al. v. Daeschner             9    10    Leary et al. v. Daeschner                           No. 01-6118

representative required her regularly to raise contentious                      federal whistleblower laws (Count VI ); state law damages
issues on behalf of the faculty.                                                under various and sundry theories including false
                                                                                imprisonment, defamation, libel, emotional distress,
   After a hearing lasting several days, on August 13, 1999,                    interference with contract rights, and interference with
the district court determined that Plaintiffs were not entitled                 advantageous relationship (Count VII ); and punitive damages
to the requested relief on their First Amendment claims, but                    (Count VIII ). Notably, Plaintiffs’ amended complaint did
they were entitled to more pre-deprivation process before they                  not restate the injunctive claims contained in the original
could be transferred. In response to the court’s order, on the                  complaint as claims for monetary damages. Daeschner filed
morning of August 16, 1999,10 Defendant gave Plaintiffs                         numerous summary judgment motions in response to these
written notice of their transfers, explaining the reasons for the               claims. On July 31, 2000, the district court entered an order
transfers, and providing Plaintiffs with an opportunity to                      granting Daeschner’s partial motion for summary judgment
respond at hearings scheduled for noon and one o’clock in the                   with respect to Plaintiffs’ First Amendment claims but
afternoon, that very day. Instead of making an appearance at                    denying it as to their due process claims. Almost a month
the scheduled hearings or requesting a continuance, Plaintiffs                  later, on August 29, 2000, the district court entered another
chose to file a “Motion in Furtherance of a Preliminary                         order granting Daeschner’s second motion for summary
Injunction; and for Order of Contempt in Regard to                              judgment with respect to Count V, VI, and portions of Count
Superintendent Steven W. Daeschner.” The district court                         VII from the amended complaint.12 On March 1, 2001, the
decided that Daeschner’s short-notice hearing complied with                     district court granted Daeschner’s third motion for summary
the court’s August 13, 1999 order11 and provided Plaintiffs                     judgment, this time dismissing the remaining claims in Count
with sufficient process. Thus, Plaintiffs’ failure to participate               VII.
in the hearing was a waiver of the due process rights afforded
them by the district court’s order. Plaintiffs appealed this                      After Daeschner’s fourth motion for summary judgment
decision to a panel of this court. On appeal, we affirmed the                   was filed but before the district court issued its June 13, 2001
district court’s decision to deny the preliminary injunction                    decision, Plaintiffs moved on April 30, 2001 to amend their
requested by Plaintiffs. Leary v. Daeschner, 228 F.3d 729,                      complaint a second time. More than one year after they were
734 (6th Cir. 2000).                                                            permitted to file an amended complaint and close to two years
                                                                                after this litigation began, the Plaintiffs wanted to add claims
  While the interlocutory appeal was pending, Plaintiffs were                   for general, compensatory, and punitive damages for the due
permitted to file an amended complaint on March 17, 2000,                       process violations, damages for breach of the CBA, and a
adding four new claims: damages for loss of their liberty                       renewed demand for a jury trial. Finally, on June 13, 2001,
interests and violation of procedural due process in post-                      the district court entered an order granting Daeschner’s fourth
deprivation procedure (Count V); damages under the state and                    motion for summary judgment which disposed of all of
                                                                                Plaintiffs’ remaining claims. In addition, this order denied

    10
      The school year was scheduled to begin on the next day, August
17, 1999.                                                                            12
                                                                                        W e note that both the July 31, 2000 and the August 29, 2000
    11
                                                                                district court orders were issued before we published our opinion in Leary
        The district court cited the imminent start of the school year as one   v. Daeschner, 228 F .3d 72 9 (6th Cir. 20 00), which addressed Plaintiffs’
justification for this hurried hearing.                                         appeal from the district court’s denial of a preliminary injunction.
No. 01-6118                    Leary et al. v. Daeschner      11    12    Leary et al. v. Daeschner                    No. 01-6118

Plaintiffs’ motion for leave to file a second amended               evidence” which would create a genuine dispute for the jury.
complaint. The court stated that the Plaintiffs did not show        Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir. 2001); see
good cause pursuant to Federal Rules of Civil Procedure 16          also Street, 886 F.2d at 1477 (“The mere existence of a
and 15 for failure to move earlier for leave to amend.              scintilla of evidence in support of the plaintiff’s position will
Furthermore, Plaintiffs did not highlight any authority             be insufficient.” (quotation omitted)). In reviewing the
supporting the notion that damages are appropriate in cases         district court’s decision to grant summary judgment, we must
where Plaintiffs waived their right to due process, and thus an     view all evidence and draw all reasonable inferences in the
amendment adding damages claims would be futile. Pursuant           light most favorable to the nonmoving party. Matsushita
to Federal Rule of Civil Procedure 59(e), Plaintiffs moved to       Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
have the judgment set aside. On August 7, 2001, the district        (1986).
court denied this motion. The Plaintiffs then filed this timely
appeal.                                                             B. First Amendment Retaliation Analysis

                       II. ANALYSIS                                   Plaintiffs claim that they were transferred in retaliation for
                                                                    engaging in protected speech. Because we believe a review
A. Summary Judgment Standard                                        of the record reveals that genuine issues of material fact exist,
                                                                    we hold that the district court improperly granted summary
   We review a district court’s order granting summary              judgment on Plaintiffs’ First Amendment claims.
judgment de novo. Rannals v. Diamond Jo Casino, 265 F.3d
442, 447 (6th Cir. 2001), cert. denied, 534 U.S. 1132 (2002).         In order to state a retaliation claim under the First
In accordance with Federal Rule of Civil Procedure 56(c), a         Amendment a plaintiff must show that: “1) [she] engaged in
grant of summary judgment is affirmed “if the pleadings,            constitutionally protected speech; 2) [she] was subjected to
depositions, answers to interrogatories, and admissions on          adverse action or was deprived of some benefit; and 3) the
file, together with the affidavits, if any, show that there is no   protected speech was a ‘substantial’ or a ‘motivating factor’
genuine issue as to any material fact and the moving party is       in the adverse action.” Brandenburg v. Housing Auth. of
entitled to a judgment as a matter of law.” Fed. R. Civ. P.         Irvine, 253 F.3d 891, 897 (6th Cir. 2001) (citing Mt. Healthy
56(c). A dispute over a material fact cannot be “genuine”           City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
unless a reasonable jury could return a verdict for the             (1977)). Public employee plaintiffs are required to meet
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.          additional standards to establish that the speech at issue is
242, 248 (1986). Initially, the moving party has the burden of      constitutionally protected. First, a public employee plaintiff
proving that no genuine issue as to any material fact exists        must demonstrate that the speech involved matters of public
and that it is entitled to a judgment as a matter of law. Street    interest or concern. Cockrel v. Shelby County Sch. Dist., 270
v. J.C. Bradford & Co., 886 F.2d 1472, 1477, 1479 (6th Cir.         F.3d 1036, 1048 (6th Cir. 2001), cert. denied, -- U.S. --, 123
1989) (noting “that not every issue of fact or conflicting          S. Ct. 73 (2002). Second, the plaintiff must show that her
inference presents a genuine issue of material fact which           interest in addressing these matters of public concern
requires the denial of a summary judgment motion”). To              outweighs the interest of her employer “in promoting the
meet this burden, the moving party may rely on any of the           efficiency of the public services it performs through its
evidentiary sources listed in Rule 56(c) or on the failure of the   employees.” Pickering v. Bd. of Educ. of Township High Sch.
nonmoving party to produce “more than a mere scintilla of           Dist. 205, 391 U.S. 563, 568 (1968). The Pickering balancing
No. 01-6118                    Leary et al. v. Daeschner      13    14     Leary et al. v. Daeschner                             No. 01-6118

test must be used “[i]f any part of an employee’s speech            when we upheld the district court’s finding that Plaintiffs
relating to a matter of public concern is a substantial or          failed to show a strong likelihood of success on the merits.
motivating factor in the adverse action.” Banks v. Wolfe            See Leary, 228 F.3d at 739. Recognizing that the standard on
County Bd. of Educ., 330 F.3d 888, 893 (6th Cir. 2003).             a motion for summary judgment is less deferential than the
“Whether speech addresses a matter of public concern is a           “stringent” standard applied to a district court’s findings on a
question of law.” Id. at 892.                                       preliminary injunction, we made clear that we were not
                                                                    commenting on the merits of the Plaintiffs’ case. Id. We
  Once the public-employee plaintiff has met her burden and         concluded our analysis:
established a prima facie case, the burden of persuasion shifts
to the defendant who must show by a preponderance of the              Thus, we do not decide whether we would grant a
evidence that there were other reasons for the adverse action         preliminary injunction if we were acting in the place of
and that the same adverse action would have resulted even if          the district court, nor do we decide whether summary
the plaintiff had not engaged in the protected activity at issue.     judgment is appropriate. Rather, given the closeness of
See Jackson v. Leighton, 168 F.3d 903, 909 (6th Cir. 1999);           the question, and the fact that the plaintiffs’ arguments,
Boger v. Wayne County, 950 F.2d 316, 322 (6th Cir. 1991).             while shedding some doubt on the district court’s
“These are issues of fact, however, and may not be decided on         interpretation of the facts, do not show the district court’s
a motion for summary judgment unless the evidence ‘is so              factual findings to be clearly erroneous, we affirm the
one-sided that one party must prevail as a matter of law.’”           district court’s conclusion that the plaintiffs have not, for
Boger, 950 F.2d at 322-23 (quotation omitted).                        the purpose of the preliminary injunction, shown that the
                                                                      plaintiffs’ transfer was motivated by their protected
   When this case was before the district court on Plaintiffs’        speech, and therefore that the plaintiffs have not shown
request for preliminary equitable relief, that court agreed that      a strong likelihood of success on the merits.
Plaintiffs’ speech involved matters of public concern. The
district court altogether skipped the question of whether the       Id.
transfers were an adverse action and focused instead on the
third essential element. The district court determined that           While the interlocutory appeal was pending before this
Plaintiffs failed to show that their transfers were precipitated    court on the preliminary injunction ruling, the district court
“in substantial part” by their constitutionally protected           granted Daeschner’s motion for summary judgment, noting
speech. J.A. at 476 (Tr. on Mot. for Inj. Relief). The district     that the Plaintiffs did not present any new evidence in support
court pointed to other reasons for Plaintiffs’ transfers            of their First Amendment retaliation claims.13 Therefore,
including the troubled state of the school and the principal’s      because there was no genuine issue for the jury to decide, the
pending departure. Moreover, the district court determined          district court granted Daeschner’s summary judgment motion
that Plaintiffs failed to sustain their burden because the          for the reasons stated in the court’s August 13, 1999
evidence they provided involved generalized First
Amendment activities over a period of years in which many
                                                                          13
other non-transferred teachers also participated.                          W e cannot help but note that because the district court ruled on
                                                                    some of Daeschner’s summary judgment motions while the interlocutory
  On Plaintiffs’ appeal from the denial of preliminary              appeal still was pending, the urgency for Plaintiffs to collect new evidence
injunctive relief, we mentioned the “close” nature of this case     in supp ort of the ir claims was diminished. Likewise, the d istrict court did
                                                                    not have the benefit of our opinion to assist its decision-making.
No. 01-6118                       Leary et al. v. Daeschner         15    16    Leary et al. v. Daeschner                    No. 01-6118

injunction hearing. When the district court granted the                   and desirability of suggested educational programs to other
summary judgment motion, the only evidence on the record                  teachers’ disregard for school procedures when making
was the August 1999 hearing and the deposition testimony of               school-related decisions. In our previous decision, based on
Bowlds and Daeschner.14                                                   the evidence available at that time, we agreed with the district
                                                                          court’s conclusion that Plaintiffs’ speech was constitutionally
  1. Protected Activity                                                   protected. See Leary, 228 F.3d at 738 (finding the balance in
                                                                          favor of Plaintiffs and noting that “the school board ha[d]
   “Speech of a public employee is entitled to First                      essentially conceded the point”). Although at that stage of the
Amendment protection if it relates to a matter of public                  litigation all that the Plaintiffs needed to show was that their
concern.” Boger, 950 F.2d at 322. In Connick v. Myers, 461                speech was constitutionally protected for preliminary
U.S. 138 (1983), the Supreme Court held that speech involves              injunction purposes, there is no new evidence in the record to
a matter of public concern when it relates to “any matter of              support a contradictory conclusion on summary judgment.
political, social, or other concern to the community.” Id. at
146. This must be differentiated from a public employee’s                    A public employee’s speech that relates “to any matter of
speech that involves matters of personal interest which are not           political, social, or other concern to the community [at large]”
protected. Id. at 147 (holding that when a public employee                is properly considered speech on a matter of public concern.
speaks “as an employee upon matters only of personal interest             Connick, 461 U.S. at 146. Even if some of the complaints
. . . a federal court is not the appropriate forum in which to            raised by Plaintiffs more properly are classified as matters of
review the wisdom of a personnel decision taken by a public               personal concern, at the very least comments regarding the
agency allegedly in reaction to the employee’s behavior”).                legality of educational programs, the discipline of students,
“In general, speech involves matters of public concern when               and the violation of school procedures constitute protected
it involves ‘issues about which information is needed or                  speech because “some portion of the speech touches on a
appropriate to enable the members of society to make                      matter of public concern.” Banks, 330 F.3d at 895 (noting
informed decisions about the operation of their government.’”             that allegations that the school board violated state law and
Banks, 330 F.3d at 893 (quoting Brandenburg, 253 F.3d at                  their own internal policies are matters of public concern); see
898). “Whether an employee’s speech addresses a matter of                 also Leary, 228 F.3d at 737 (noting that student discipline and
public concern must be determined by the content, form, and               educational program implementation are “matters of concern
context of a given statement, as revealed by the whole                    to the community at large” and that the legality of proposed
record.” Connick, 461 U.S. at 147-48.                                     school programs is “undoubtedly of the highest public
                                                                          concern”). Here, Plaintiffs’ speech receives constitutional
   Plaintiffs’ theory is that they were transferred in retaliation        protection under the First Amendment because it pertains to
for actively voicing their complaints regarding the problems              issues of community importance. Looking at the “content,
at Atkinson. Plaintiffs assert that their complaints involved             form, and context,” we conclude that these statements “are of
subjects ranging from discipline of the students to the legality          public import in evaluating the performance of [Atkinson
                                                                          Elementary School].” Connick, 461 U.S. at 147-48.

    14                                                                      Once we hold that Plaintiffs’ speech touches on matters of
      The only truly new testimony was Daeschner’s deposition, because    public concern, Pickering instructs us to balance the
Bo wlds’s deposition contained the same information as her testimony at
her 1999 hearing.
                                                                          Plaintiffs’ interest, as citizens, in addressing these matters of
No. 01-6118                    Leary et al. v. Daeschner     17    18     Leary et al. v. Daeschner                            No. 01-6118

public concern with the school’s interest “as an employer, in      changed since our last Pickering balance of these factors15
promoting the efficiency of the public services it performs        and because Daeschner provides no reason why we should
through its employees.” Pickering, 391 U.S. at 568. When           approach the balancing differently simply because we now are
balancing these two competing interests, we “consider              evaluating the First Amendment claims after a grant of
whether an employee’s comments meaningfully interfere with         summary judgment, we adhere to our original balancing of
the performance of her duties, undermine a legitimate goal or      these factors and hold that the Plaintiffs’ speech was
mission of the employer, create disharmony among co-               constitutionally protected.
workers, impair discipline by superiors, or destroy the
relationship of loyalty and trust required of confidential           2. Adverse Action
employees.” Cockrel, 270 F.3d at1053 (quotation omitted).
In essence, the speech complained of must interfere with the          Our previous opinion noted that Daeschner conceded that
job Plaintiffs are hired to perform or the functioning of the      an involuntary transfer to another school within the district
workplace in general. Pickering, 391 U.S. at 568. The public       “would have a sufficient chilling effect to qualify as an
employee’s speech will be constitutionally protected only if       adverse action under the First Amendment retaliation
the Pickering balancing test proves the employee’s interest to     analysis.” Leary, 228 F.3d at 738. Again, no new evidence
outweigh the employer’s interest.                                  exists for a different finding. The fact that we now review a
                                                                   district court’s disposition of a summary judgment motion as
  Helping tip the balance in Daeschner’s favor is the fact that    opposed to a request for a preliminary injunction does not
the volatility of the school’s situation necessitated functional   change our conclusion. Clearly, involuntary transfer from
efficiency. Leary, 228 F.3d at 738. In addition, because           one job to another is action that “would likely chill a person
Leary was known to yell at her coworkers and Williams was          of ordinary firmness from continuing to engage in that
known to challenge Howard’s authority, Plaintiffs’ speech          constitutionally protected activity.” Bloch v. Ribar, 156 F.3d
can be characterized as disruptive in the work environment.        673, 679 (6th Cir. 1998). Moreover, we previously
Id. Moreover, because certain aspects of Plaintiffs’ speech        determined that an involuntary job transfer, where neither
can be identified as directed toward coworkers and                 grade nor salary is affected, qualifies as adverse action for
supervisors, it posed a “question of maintaining either            purposes of the First Amendment. See Boger, 950 F.2d at
discipline by immediate superiors or harmony among                 321. Here, evidence in the record suggests that being
coworkers.” Pickering, 391 U.S. at 570. On the other hand,         transferred from one school in the district to another causes
Plaintiffs’ speech obviously did not interfere with their job      Plaintiffs to suffer harm to their reputations, while the
performance because they consistently received stellar             transfers also remain notations in their files for a year. The
reviews. Moreover, there was no evidence that either teacher       act of transferring Plaintiffs to another school additionally can
had been disciplined previously for failure to perform her         negatively impact their daily experiences including their
duties. Daeschner never suggested how Plaintiffs’ speech on        commute, coworker friendships, and community
student discipline or choice of educational programs
“undermine[d] a legitimate goal or mission of the employer.”
                                                                        15
Cockrel, 270 F.3d at1053. Because the evidence has not                    After we assessed the factors in the balance, we determined that
                                                                   “the plaintiffs’ speaking out on discipline, choice of educational
                                                                   appro aches, and potential violations of the law by the school district is of
                                                                   sufficient public importance to outweigh the employer’s interest in
                                                                   limiting that speech.” Leary, 228 F.3d at 738.
No. 01-6118                         Leary et al. v. Daeschner          19     20    Leary et al. v. Daeschner                           No. 01-6118

relationships. See J.A. at 101-03 (Drescher Test.), 354                       Daeschner’s evidence on the reasons for Plaintiffs’ transfers
(Williams Test.).                                                             or whether to believe Plaintiffs’ contrasting evidence on the
                                                                              reasons for their transfers. While it is true that not every
  3. Substantial or Motivating Factor                                         question of fact saves a case from disposition on summary
                                                                              judgment, summary judgment is not proper when Plaintiffs
  The final showing that the Plaintiffs must make before the                  create a jury issue by raising a genuine issue of material fact.
burden shifts to the Defendant is that their “protected speech                In order for a factual issue to be “genuine” a reasonable jury
was a substantial or a motivating factor in the adverse action.”              must be able to return a verdict for the nonmoving party.
Brandenburg, 253 F.3d at 897 (quotation omitted). On the                      Anderson, 477 U.S. at 248. Here, construing the evidence in
Plaintiffs’ request for injunctive relief, the district court                 a light most favorable to the nonmoving party, Matsushita
determined that Plaintiffs failed to make the showing of a                    Elec. Indus. Co., 475 U.S. at 587, we conclude that Plaintiffs’
substantial or motivating factor because the evidence that they               evidence that their transfers were motivated by their protected
were transferred for confrontations with Howard was                           speech, while not overwhelming, is more than a scintilla and
undermined by Howard’s resignation and because the                            is sufficient to survive a motion for summary judgment. See
protected speech occurred over a long period of time. We                      Street, 886 F.2d at 1477.
affirmed that decision on the basis that the district court’s
factual findings were not clearly erroneous. Leary, 228 F.3d                     Plaintiffs’ most promising evidence showing that their
at 739.16 Because Plaintiffs failed to produce any new                        transfers were motivated by their outspokenness is that
evidence on this issue in response to Daeschner’s motion for                  Howard testified that Leary was “probably [transferred]
summary judgment, the district court relied on its findings                   because of [her speaking out on school-related issues] and
from the preliminary injunction hearing.17 On this appeal,                    some other things.” J.A. at 296 (Howard Test.). Leary
Plaintiffs redirect our attention to evidence that their transfers            regards Howard’s later-retracted statement18 as clear and
were motivated, at least in part, by their vocal behavior.                    direct evidence that her transfer was precipitated by her
                                                                              protected speech. In addition to Howard’s suggestive
  The determination of the reason for Plaintiffs’ transfers is                statement, Plaintiffs point to testimony from fellow teachers
a question of fact because it involves whether to believe                     expressing opinions that Plaintiffs were transferred because
                                                                              they were too vocal. Plaintiffs ask us to draw logical
                                                                              inferences from the evidence that Plaintiffs had excellent
    16
       Although we affirmed the district court’s denial of a preliminary      records at Atkinson and from the various administrators’ poor
injunction, we clearly stated that the standard requ ired for a preliminary   treatment of Plaintiffs, to reach the conclusion that Plaintiffs’
injunction is more “stringe nt” than that required for sum mary judgm ent.    vocal behavior caused their transfers.19 Plaintiffs also
W e explicitly declined to express an opinion on the merits of Plaintiffs’
case. Leary, 228 F.3d at 739.

    17                                                                             18
        The district court seemed to focus almost entirely on whether                 Howard later retracted this testimony, stating that Leary was
Plaintiffs showed that their transfers were based “in substantial part” on    transferred beca use she failed to “emb race c hange.” J.A. at 297 (Howard
their protected speech. The actual test provides that the protected speech    Test.).
must be either a substantial or a motivating factor in bringing about the          19
adverse action. But see Mt. Healthy City Sch. Dist. Bd. of Educ., 429 U.S.           At a staff meeting, Howard told the faculty that some of them were
at 287 (suggesting that “substantial factor” and “motivating factor” are      “nagging, bitching, complainers,” and that they knew who they were.
one and the same).                                                            J.A. at 317 (Howard Test.). Plaintiffs suggest that this comment was
No. 01-6118                         Leary et al. v. Daeschner          21     22    Leary et al. v. Daeschner                    No. 01-6118

provide us with their own testimony explaining their roles in                   4. Defendant’s Alternative Explanation
the Atkinson community and their proclivity to speak on
behalf of others. For example, Williams acted as the part-                       As stated previously, once Plaintiffs have established their
time JCTA representative, which required her to advocate on                   prima facie case, the burden shifts to the Defendant to prove
behalf of other teachers for a period of three or four years.                 by a preponderance of the evidence that the same adverse
Moreover, Leary testified that she had no idea why she was                    action would have occurred regardless of the protected
transferred, so her “best guess is being too vocal.” J.A. at                  speech. See Mt. Healthy City Sch. Dist. Bd. of Educ., 429
338-39 (Leary Test.). Likewise, Williams seemed baffled by                    U.S. at 287. Daeschner has produced no evidence, other than
her transfer and testified that “[t]he only conclusion I could                the evidence used to counter Plaintiffs’ evidence that their
come to is that I was too vocal.” J.A. at 460 (Williams Test.).               transfers were unconstitutional, to show that the transfers
                                                                              would have occurred at this time and in this manner with or
   Daeschner argues that the Plaintiffs were transferred not                  without Plaintiffs’ vocal behavior. Because a genuine issue
because they were vocal, but because they were not “team                      of material fact still exists with respect to the reason for
players” and they would impede the changes necessary for                      Plaintiffs’ transfers, whether Plaintiffs’ transfers would have
Atkinson’s success.20 In addition, Daeschner recites                          occurred in the absence of the protected speech also requires
Plaintiffs’ behavioral problems to undermine Plaintiffs’                      further proceedings.
contention that the transfers were retaliatory. Because a
determination of the reasons for Plaintiffs’ transfers involves                 5. Supervisor Liability
disputed issues of fact, summary judgment is not proper
“unless the evidence is ‘so one-sided that one party must                       The Supreme Court has stated that § 1983 liability cannot
prevail as a matter of law.’” Boger, 950 F.2d at 322-23                       be premised on a theory of respondeat superior. Taylor v.
(quotation omitted). On the record before us, this is not the                 Michigan Dep’t of Corr., 69 F.3d 76, 81 (6th Cir. 1995)
case. In fact, the Plaintiffs produced ample evidence on the                  (citing Monell v. New York City Dep’t of Social Servs., 436
allegedly unconstitutional basis for their transfers which is in              U.S. 658, 691 (1978)). However, supervisor liability under
direct conflict with Daeschner’s evidence. This creates “a                    § 1983 is appropriate when “the supervisor encouraged the
genuine issue of material fact that must be resolved by the                   specific incident of misconduct or in some other way directly
trier of fact,” not on summary judgment. Id. at 323.                          participated in it,” or “at least implicitly authorized, approved
                                                                              or knowingly acquiesced in the unconstitutional conduct of
                                                                              the offending subordinate.” Bellamy v. Bradley, 729 F.2d
                                                                              416, 421 (6th Cir.), cert. denied, 469 U.S. 845 (1984).
directed to them . In add ition, testimo ny was heard that if Leary did not   “[Section] 1983 liability of supervisory personnel must be
agree with Bo wlds in team lea der m eetings, B owlds would “cut her off      based on more than the right to control employees.” Id.
mid-sentence.” J.A. at 354 (M cAvinue Test.).
                                                                              Likewise, simple awareness of employees’ misconduct does
    20                                                                        not lead to supervisor liability. Lillard v. Shelby County Bd.
        Daeschner relies on testimony from Bowlds to insist that the
transfers were not arranged in violation of Plaintiffs’ First Amendm ent
                                                                              of Educ., 76 F.3d 716, 728 (6th Cir. 1996).
rights. Bowlds testified that Leary’s transfer “certainly had nothing to do
with speaking out.” J.A. at 173 (Bowlds Test.). W ith respect to W illiams,     Daeschner argues that even if Plaintiffs’ transfers were
Bowlds testified: “I certainly, certainly, certainly could never have         precipitated by their protected speech, he cannot be liable for
recommended her because of being vocal. I never heard a word [from            his employees’ constitutional violations because Plaintiffs
W illiams].” J.A. at 176, 178 (Bowlds T est.).
No. 01-6118                   Leary et al. v. Daeschner     23    24    Leary et al. v. Daeschner                    No. 01-6118

cannot show how Daeschner, who did not know either of the         specific instances where either Leary or Williams impeded
Plaintiffs, had a retaliatory motive in issuing the final         progress at Atkinson. J.A. at 132 (Daeschner Dep.).
approval for Plaintiffs’ transfers. In our prior published        Considering that Meriweather’s directive to Bowlds and
opinion in this case, we identified a number of ways in which     Howard was to identify teachers for transfer who would resist
Daeschner could be liable. One way Daeschner could be             change and progress at Atkinson, a reasonable fact finder
exposed to liability is if he encouraged or acquiesced in the     could determine that even though the school was in crisis
unconstitutional behavior. Leary, 228 F.3d at 740. Another        mode and needed to effectuate change through transfers,
possible way would be if the Plaintiffs could show that           change should stem from reasonable procedures that ensure
“because Daeschner was primarily responsible for approving        that teachers are chosen for transfers based on proper criteria
the transfer of teachers, he [was] responsible for failing to     and not based on their proclivity to vocalize concerns of
perform his job properly or for acquiescing in the                public importance. Cf. Taylor, 69 F.3d at 81 (noting that a
constitutional violations resulting from his delegation of this   jury could find a supervisor liable for failure to adopt policies
responsibility.” Id. Finally, we noted that “Daeschner might      for transfer that ensure inmate safety). Moreover, a
be liable if the plaintiffs can show that he encouraged his       reasonable fact finder could determine that reliance on people
subordinates to transfer teachers who were particularly vocal     in leadership positions to recommend transfers is insufficient
in speaking out against school policy through his mandate to      to ensure that transferees are not chosen for unconstitutional
transfer those teachers who were not ‘team players.’” Id.         reasons. J.A. at 124 (Daeschner Dep.) (stating that he relied
                                                                  on Eckels and Meriweather who gave him the
   In Taylor, we determined that summary judgment for a           recommendations who in turn relied on the recommendations
prison warden in a § 1983 action was improper because a           of Howard and Bowlds). Thus, whether Daeschner can be
genuine issue of material fact existed as to whether the          held liable in his supervisory capacity for the violation of
warden was aware and acquiesced in his subordinates’ failure      Plaintiffs’ First Amendment rights remains an issue for the
to review properly prisoner-transfer orders resulting in          trier of fact.
violation of a transferred prisoner’s Eighth Amendment
rights. Taylor, 69 F.3d at 80. We commented that the prison       C. Denial of Leave to Amend Analysis
warden in Taylor was not “merely a supervisor, but [was] the
official directly responsible both for transfers and for            1. Standard of Review
adopting reasonable transfer procedures.” Id. at 81. In our
estimation, the warden “abandon[ed] the specific duties of his       Denial of a motion for leave to amend is reviewed by this
position — adopting and implementing an operating                 court for an abuse of discretion. See Duggins v. Steak ‘N
procedure that would require a review of the inmate’s files       Shake, Inc., 195 F.3d 828, 833 (6th Cir. 1999). “Abuse of
before authorizing the transfers.” Id.                            discretion is defined as a definite and firm conviction that the
                                                                  trial court committed a clear error of judgment.” Bowling v.
  Much like the situation in Taylor, a reasonable fact finder     Pfizer, Inc., 102 F.3d 777, 780 (6th Cir. 1996), cert. denied,
“could find on the facts that [Daeschner] personally had a job    522 U.S. 906 (1997) (quotation omitted). A district court’s
to do, and that he did not do it.” Taylor, 69 F.3d at 81.         decision is to be afforded great deference; it “will be
Daeschner stated in his deposition that he was the one who        disturbed only if the district court relied upon clearly
put the transfers “into operation.” J.A. at 127 (Daeschner        erroneous findings of fact, improperly applied the governing
Dep.). However, he also stated that he did know of any            law, or used an erroneous legal standard.” Blue Cross & Blue
No. 01-6118                        Leary et al. v. Daeschner          25     26     Leary et al. v. Daeschner                           No. 01-6118

Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass’n, 110                   denied Plaintiffs’ motion for leave to amend their complaint
F.3d 318, 322 (6th Cir. 1997). However, if leave to amend is                 because Plaintiffs did not show good cause for failure to
denied on the grounds that it would be “futile,” then de novo                move for leave to amend before expiration of the deadlines in
review is appropriate. Inge v. Rock Fin. Corp., 281 F.3d 613,                the court’s scheduling order, as called for in Federal Rule of
625 (6th Cir. 2002).                                                         Civil Procedure 16. The court concluded:
  2. Leave to Amend                                                            The plaintiffs seek at this late date to recast the due
                                                                               process violation as one for breach of the collective
  The prayer for relief in Plaintiffs’ original complaint                      bargaining agreement.         They have provided no
requested that the district court hold a hearing on Plaintiffs’                justification for their failure to raise this legal theory
motion for a preliminary injunction, issue a permanent                         earlier. The plaintiffs have referenced the collective
injunction prohibiting Defendant’s violation of Plaintiffs’                    bargaining agreement throughout this litigation, and the
constitutional rights, declare Section D of the CBA                            claim has clearly been available to them.
unconstitutional, order the Defendant to pay Plaintiffs’ costs
and attorney fees, and grant “all further and proper relief to               J.A. at 103 (Mem. Op. & Or.). As an aside, the district court
which [Plaintiffs] may be herein entitled.” J.A. at 31                       noted that even if Plaintiffs had been permitted to amend their
(Compl.). The first amended complaint added four new                         claims, the amendment would be futile because they did not
claims, all seeking damages. Plaintiffs sought to amend their                include any binding precedent to support their contention that
complaint a second time “to clear up any confusion in regard                 damages are available when Plaintiffs waive “process which
to damages claimed.” J.A. at 91 (Mem. in Supp. of Second                     was due [and] subsequently afforded them.” Id.23
Am. Compl.).21 The proposed second amended complaint
sought to add claims for monetary damages — general,                           Federal Rule of Civil Procedure 15 provides that leave to
compensatory, and punitive — for the due process claims                      amend “shall be freely given when justice so requires.” Fed.
contained in the original complaint.22 The district court                    R. Civ. P. 15(a). The Supreme Court, commenting on the
                                                                             mandate in Rule 15(a), stated:

    21
       Plaintiffs’ original complaint requested only declaratory and
injunctive relief for their due process claims, whereas the first amended
complaint added new claims with requests for monetary damages but
never requested monetary damages for the due process claims contained        received all the process that was due. Thus, even if the district court
in the original complaint. One claim in the first amended complaint          abused its discretion by denying Plaintiffs an op portunity to am end their
requested monetary damages for post-d eprivation violations of due           com plaint, Plaintiffs have not shown how the district court could have
process, but the first amended com plaint did not request monetary           granted any damages when no due process violation had o ccurred. T hus,
damages for the pre-deprivation due process violation alleged in the         we could decide that the district court reached the correct result on an
origina l complaint.                                                         alternative ground — concluding that the proposed amendment would be
                                                                             futile.
    22
        Because we already have determined that there was no d ue proc ess        23
violation, see Leary, 228 F.2d at 744, Plaintiffs’ motion for leave to               This was merely dicta because the district court expressly stated
amend their complaint to include a damages claim for the violation of        that it did not need to reach the question of futility. J.A. at 103 (M em.
their right to due process (Counts IX-XI) is moot. Indeed, it is unclear     Op. & Or.). Thus, the proper standard of review on appeal is abuse of
what due p rocess issues remain after we determined that Plaintiffs          discretion. See Duggins, 195 F.3d at 833.
No. 01-6118                    Leary et al. v. Daeschner     27    28   Leary et al. v. Daeschner                    No. 01-6118

  In the absence of any apparent or declared reason — such         will suffer prejudice by virtue of the amendment. Inge, 281
  as undue delay, bad faith or dilatory motive on the part of      F.3d at 625.
  the movant, repeated failure to cure deficiencies by
  amendments previously allowed, undue prejudice to the               A number of circuit courts have previously considered the
  opposing party by virtue of allowance of the amendment,          intersection of Rule 15’s liberal amendment mandate and
  futility of the amendment, etc. — the leave sought               Rule 16’s good cause requirement. See generally Parker v.
  should, as the rules require, be “freely given.”                 Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000)
                                                                   (holding that “despite the lenient standard of Rule 15(a), a
Foman v. Davis, 371 U.S. 178, 182 (1962). The Court noted          district court does not abuse its discretion in denying leave to
that although leave to amend remains within the sound              amend the pleadings after the deadline set in the scheduling
discretion of the trial court, the lower court must announce       order where the moving party has failed to establish good
some reason for its decision, i.e., exercise discretion, or risk   cause”); Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th
being reversed for an abuse of discretion. Id.                     Cir. 1998) (“[B]ecause [plaintiff’s] motion to amend was filed
                                                                   after the scheduling order’s deadline, [plaintiff] must first
   More than twenty years after the Court’s decision in            demonstrate good cause under Rule 16(b) before we will
Foman, the 1983 amendments to the Federal Rules of Civil           consider whether amendment is proper under Rule 15(a).”);
Procedure altered Rule 16 to contain a provision restricting       Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610
the timing of amendments. Fed. R. Civ. P. 16, 1983 advisory        (9th Cir. 1992) (noting that Rule 16’s standards may not be
committee’s notes. Rule 16 states, in relevant part: “the          “short-circuited” by those of Rule 15 because “[d]isregard of
district judge . . . shall, after receiving the report from the    the [scheduling] order would undermine the court’s ability to
parties under Rule 26(f) . . . enter a scheduling order that       control its docket, disrupt the agreed-upon course of the
limits the time (1) to join other parties and to amend the         litigation, and reward the indolent and the cavalier”).
pleadings . . . .” Fed. R. Civ. P. 16(b) (emphasis added). The     Although we never have commented explicitly on the
Rule is designed to ensure that “at some point both the parties    intersection of the two Rules, one of our recent decisions
and the pleadings will be fixed.” Fed. R. Civ. P. 16, 1983         addresses the “good cause” requirement in Rule 16. See Inge,
advisory committee’s notes. The Rule permits modification          281 F.3d at 625-26.
to the scheduling order “upon a showing of good cause and
by leave of the district judge.” Fed. R. Civ. P. 16(b)                In Inge, we concluded that the district court’s denial of
(emphasis added). But a court choosing to modify the               leave to amend based on Rule 16(b) was an abuse of
schedule upon a showing of good cause, may do so only “if          discretion because the plaintiff acted diligently when she
it cannot reasonably be met despite the diligence of the party     sought to amend her complaint to “remedy pleading
seeking the extension.” Fed. R. Civ. P. 16, 1983 advisory          deficiencies.” Id. at 626. We determined that while prejudice
committee’s notes; see also Inge, 281 F.3d at 625 (stating that    to the defendant is not an express component of Rule 16, it is
good cause is measured by the movant’s “diligence in               nonetheless a “relevant consideration,” and the Inge defendant
attempting to meet the case management order’s                     would not suffer significant prejudice if plaintiff was allowed
requirements” (quotation omitted)). Another important              to amend her complaint to remedy the errors that caused the
consideration for a district court deciding whether Rule 16’s      complaint to be dismissed seven days earlier. Id.; cf. Moore
“good cause” standard is met is whether the opposing party         v. City of Paducah, 790 F.2d 557, 562 (6th Cir. 1986) (noting
                                                                   that the denial of plaintiff’s motion to amend was an abuse of
No. 01-6118                        Leary et al. v. Daeschner          29     30    Leary et al. v. Daeschner                          No. 01-6118

discretion where “rejection of the amendment would preclude                  dismissed most of the claims in the first amended complaint,
plaintiff’s opportunity to be heard on the merits on facts                   seven months after we issued an opinion in this case agreeing
which are well known to the parties and which were pleaded                   with the district court that Plaintiffs received sufficient pre-
at the outset although relief was erroneously sought under                   deprivation process, one month after the district court
§ 1985” and where the defendant suffered only “relatively                    dismissed the interference and emotional distress claims from
light prejudice”). Even though in Inge we held that the                      the first amended complaint, and one month after Daeschner
district court abused its discretion, we relied solely on Rule               filed his last summary judgment motion to dismiss Plaintiffs’
16 to reach this conclusion, never once mentioning Rule 15                   sole remaining claim for punitive damages. Plaintiffs sought
and its liberal amendment policy.                                            leave for an amendment almost two years after the scheduling
                                                                             order’s discovery and dispositive motion deadlines had
   An earlier decision of this court required a district court to            passed. See Inge, 281 F.3d at 625 (requiring that a party
find “‘at least some significant showing of prejudice to the                 diligently attempt to meet the scheduling order’s deadlines
opponent,’” before it could deny a motion for leave to amend.                before the deadline can be changed); but see Moore, 790 F.2d
Duggins, 195 F.3d at 834 (quoting Moore, 790 F.2d at 562).                   at 560 (noting that “delay alone, regardless of its length is not
In that case, we determined that the district court did not                  enough to bar it [amendment] if the other party is not
abuse its discretion when it denied plaintiff’s motion for leave             prejudiced” (quotation omitted)).
to amend based on plaintiff’s undue delay and the prejudice
to the opposition. Id. We noted that prior to the plaintiff’s                   Once the deadline passed, the district court could allow
motion, the time for discovery and dispositive motions had                   Plaintiffs to file their second amended complaint only if the
passed and a summary judgment motion had been filed. Id.                     scheduling order was modified. As noted previously,
We also considered the “significant prejudice” the defendant                 modification is permitted under Rule 16 if Plaintiffs can
would suffer if the plaintiff were allowed to amend the                      demonstrate “good cause” for their failure to comply with the
complaint because not only would discovery have to be                        original schedule, by showing that despite their diligence they
reopened, but a new defense would be necessary to defeat the                 could not meet the original deadline. Fed. R. Civ. P. 16, 1983
new claim. Id.                                                               advisory committee’s notes; see also Inge, 281 F.3d at 625.
                                                                             Instead, Plaintiffs gave the district court no excuse for their
   In the present case, the Rule 16 order stated that “[any]                 considerable delay in seeking monetary damages.25 See
motions for . . . amendment of pleadings shall be filed no                   Duggins, 195 F.3d at 834 (denying plaintiff’s motion, in part,
later than November 8, 1999.” J.A. at 62 (Mem. of R. 16                      because plaintiff gave no justification for her delay); Moore,
Scheduling Conf. & Or.).24 Plaintiffs sought to amend their                  790 F.2d at 559-62 (stating that failure to provide justification
complaint for a second time on April 30, 2001. This attempt                  for tardy filings is insufficient by itself for a court to deny an
at amendment was filed nine months after the district court’s                attempt at modification). In fact, Plaintiffs attempted to
grant of summary judgment on Plaintiffs’ First Amendment                     characterize their damages claim as a mere clarification,
retaliation claims, eight months after the district court

                                                                                  25
    24
                                                                                     Plaintiffs offered no excuse in their memorandum in suppo rt of
       Plaintiffs correctly point out that the first amended complaint was   their second amended complaint, but in their appellate brief they suggest
filed on Novem ber 18, 1999, 10 days after the deadline, but was             that it should have been “obvious” that they were requesting monetary
nevertheless allowed.                                                        damages all along and that a monetary damage component was implied.
No. 01-6118                        Leary et al. v. Daeschner         31     32    Leary et al. v. Daeschner                     No. 01-6118

suggesting that they had sought damages for the due process                    As for prejudice, we already have indicated that prejudice
claims all along.26 It comes as no surprise, then, that the                 to the defendant is also a “relevant consideration.” Inge, 281
district court rejected Plaintiffs’ request pursuant to Rule 16.            F.3d at 625. In the present case, the district court did not
                                                                            expressly reference the prejudice to Daeschner, nor did it
  Much like the plaintiff in Duggins, Plaintiffs here were                  make a finding that there has been a “significant showing of
“obviously aware of the basis of the claim for many months,”                prejudice.” Moore, 790 F.2d at 562. However, some
but nonetheless failed to pursue the claim until after it was               language in the district court opinion suggests that the court
brought to their attention by Daeschner’s final summary                     considered prejudice to Daeschner. The district court
judgment motion. Duggins, 195 F.3d at 834 (holding that the                 challenged the Plaintiffs’ amendment as an attempt to change
district court did not abuse its discretion when it denied                  their legal theory by “recast[ing] the due process violation as
plaintiff’s amendment on the grounds of both undue delay                    one for breach of the collective bargaining agreement.” J.A.
and undue prejudice); see also Sosa, 133 F.3d at 1419 (“If we               at 103 (Mem. Op. & Or.); cf. Inge, 281 F.3d at 626 (holding
considered only Rule 15(a) without regard to Rule 16(b), we                 that the defendant would not suffer prejudice when the
would render scheduling orders meaningless and effectively                  plaintiff sought to refine existing claims rather than add
would read Rule 16(b) and its good cause requirement out of                 brand-new claims). Obviously Daeschner would suffer
the Federal Rules of Civil Procedure.”). Plaintiffs were aware              prejudice if the district court permitted the Plaintiffs to file a
of the “underlying facts” and the varying types of relief                   second amended complaint which essentially transformed the
available, as evidenced by the fact that they sought injunctive             original due process claims into new claims for breach of the
relief for their constitutional claims and damages for their                CBA. Moreover, because we previously evaluated the merits
state law claims. See Duggins, 195 F.3d at 834 (“The                        of Plaintiffs’ claims and ruled that Plaintiffs received
plaintiff was obviously aware of the basis of the claim for                 sufficient pre-deprivation due process, the prejudice to
many months, especially since some underlying facts were                    Defendant is even more apparent. Cf. Moore, 790 F.2d at 562
made a part of the complaint.”). Moreover, Plaintiffs’                      (noting that its “principal basis for [its] decision is that the
inclusion of the phrase “all further and proper relief to which             rejection of the amendment would preclude plaintiff’s
[Plaintiffs] may be herein entitled,” J.A. at 31 (Compl.), does             opportunity to be heard on the merits on facts which are well
not transform “the prayer for purely equitable relief into a                known to the parties and which were pleaded at the outset”).
legal claim.” See Deringer v. Columbia Transp. Div.,                        Daeschner also can show prejudice by the fact that discovery
Oglebay Norton Co., 866 F.2d 859, 863 (6th Cir. 1989); see                  will have to be reopened, years after it was closed, on the
also Fed. R. Civ. P. 8(a) (stating that pleadings must contain              issue of damages if this amendment were permitted.
“a demand for judgment for the relief the pleader seeks”).
                                                                              The question, then, is whether the district court abused its
                                                                            discretion in denying Plaintiffs’ motion for leave to amend
    26                                                                      their complaint because the motion was filed after the Rule 16
       As a preliminary matter, this characterization is undeniably false
— the first amended complaint requested damages only for a ne wly-          deadline for amendments had passed. The answer is
asserted post-deprivation due process claim. However, even if we were       decidedly “no,” because the Plaintiffs failed to show good
to agree that Plaintiffs had asserted a dam ages claim for the pre-         cause and because Daeschner would suffer undue prejudice.
deprivation due process violation, that does not change the fact that we    This is so even though the clear language of Rule 15 states
previously have determined that Plaintiffs received all the process that    that leave to amend “shall be freely given.” Fed. R. Civ. P.
was due. Thus, any damages claim set forth by Plaintiffs was rendered
moo t by our prior judgment.                                                15(a). Once the scheduling order’s deadline passes, a plaintiff
No. 01-6118                         Leary et al. v. Daeschner           33     34    Leary et al. v. Daeschner                    No. 01-6118

first must show good cause under Rule 16(b) for failure                        jury shall be preserved.” U.S. Const. amend. VII. Assessing
earlier to seek leave to amend before a court will consider                    whether the Seventh Amendment provides for a jury trial in
whether amendment is proper under Rule 15(a). See Sosa,                        a specific case “depends on the nature of the issue to be tried
133 F.3d at 1419. Our previous decisions suggest that the                      rather than the character of the overall action.” Ross v.
district court also is required to evaluate prejudice to the                   Bernhard, 396 U.S. 531, 538 (1970); see also 9 Charles Alan
opponent before modifying the scheduling order. See Inge,                      Wright & Arthur R. Miller, Federal Practice and Procedure
281 F.3d at 625; see also Duggins, 195 F.3d at 834; Moore,                     § 2302, at 18 (2d ed. 1994) (“There is no right to jury trial if
790 F.2d at 562.27 Thus, in addition to Rule 16’s explicit                     viewed historically the issue would have been tried in the
“good cause” requirement, we hold that a determination of the                  courts of equity or otherwise would have been tried without
potential prejudice to the nonmovant also is required when a                   a jury.”). Thus, we resolve the question of whether Plaintiffs
district court decides whether or not to amend a scheduling                    are entitled to a jury trial by determining whether the issues
order. Here, the district court did not abuse its discretion                   involved in the case are legal or equitable in nature.
when it denied Plaintiffs’ motion for leave to amend their
complaint after the dispositive motion deadline had passed.                      In Ross, the Supreme Court identified a three-part test for
First, the district court determined that Plaintiffs failed to                 reaching the legal-versus-equitable-in-nature conclusion.
show good cause for modification of the scheduling order.                      First, we consider the “pre-merger custom with reference to
Second, the district court’s opinion implicitly, if not                        such questions.” Ross, 396 U.S. at 538 n.10. Second, we
explicitly, commented on the prejudice that Daeschner would                    consider the “remedy sought” by the plaintiff. Id. Third, we
suffer if the Plaintiffs were permitted to “recast” their claims               evaluate “the practical abilities and limitations of juries” with
at this late stage in the proceedings. Because the district court              respect to the issue presented. Id. The first element troubled
properly applied the governing law, we must conclude that it                   many courts, but as we noted in Hildebrand v. Bd. of Tr. of
did not abuse its discretion.                                                  Mich. State Univ., 607 F.2d 705 (1979), cert. denied, 456
                                                                               U.S. 910 (1982), the Supreme Court in a later case “shift[ed]
D. Motion to Schedule Jury Trial                                               the focus to the second issue: the nature of the relief sought.”
                                                                               Id. at 708 (citing Curtis v. Loether, 415 U.S. 189 (1974)).
  Plaintiffs moved for a jury trial on November 8, 2000. The                   Thus we noted that:
district court never ruled on this motion, and Plaintiffs allege
that the district court erred by denying them a jury trial.                      [T]he chief focus to be made when determining whether
According to Federal Rule of Civil Procedure 38, “[t]he right                    a jury trial right exists is the nature of the relief sought.
of a trial by jury as declared by the Seventh Amendment to                       If the remedy sought is injunctive relief and/or back pay,
the Constitution . . . shall be preserved to the parties                         no jury trial right attaches. In the ordinary case, if the
inviolate.” Fed. R. Civ. P. 38. The Seventh Amendment                            relief sought includes compensatory and/or punitive
provides: “In Suits at common law . . . the right of trial by                    damages, then there does exist a right to trial by jury.
                                                                               Id. (“A key dividing line between law and equity has
    27                                                                         historically been that the former deals with money damages
      W e note that, in both Mo ore and Duggins, a showing of prejudice
was required, even though the plaintiffs advanced brand-new claims             and the latter with injunctive relief.”); see also Tull v. United
which more o bviously create p rejudice b ecause the defendant must            States, 481 U.S. 412, 417 (1987) (noting that the court must
contend with an entirely different substantive issue. See ge nerally M oore,   examine the nature of the action and whether the remedy
790 F.2d at 559; Duggins,195 F.3d at 833.
No. 01-6118                     Leary et al. v. Daeschner       35    36     Leary et al. v. Daeschner                            No. 01-6118

sought is legal or equitable before it can determine if the           Plaintiffs’ motion for leave to amend, the complaint cannot be
claim should be tried to a jury).                                     altered to include any claims other than those equitable
                                                                      claims28 currently at issue. Because Plaintiffs requested only
   In light of these factors, because Plaintiffs’ original            injunctive and declaratory relief for the violation of their First
complaint involved only claims that were equitable in nature,         Amendment rights, we must consider these claims equitable
Plaintiffs were not entitled to a jury trial. See Harris v.           in nature, and thus the remaining decisions in this case rest
Richards Mfg. Co., 675 F.2d 811, 815 (6th Cir. 1982);                 exclusively with the court rather than a jury. See generally
Bereslavsky v. Kloeb, 162 F.2d 862, 864 (6th Cir.), cert.             Ross, 396 U.S. at 538 n.10; Hildebrand, 607 F.2d at 708; 5
denied, 332 U.S. 816 (1947); see also Deringer, 866 F.2d at           Charles Alan Wright & Arthur R. Miller, Federal Practice
863 (concluding that because plaintiff’s claims were                  and Procedure § 1260, at 380-81 (2d ed. 1990) (“If [plaintiff]
“equitable in nature and sought purely equitable remedies, the        asserts an equitable claim and requests relief in the form of
district court properly denied [plaintiff’s] request for a jury       specific performance or an injunction, the action will be
trial”). However, once Plaintiffs filed an amended complaint          considered equitable in nature and neither party has a right to
on March 17, 2000 with claims at law, they were entitled to           a jury trial.”).
demand a jury trial. See Golden v. Kelsey-Hayes Co., 73 F.3d
648, 660 (6th Cir.), cert. denied, 519 U.S. 807 (1996) (“Once                                 III. CONCLUSION
a court determines that a case involves legal issues, the
litigants have a right to a jury trial on those issues, regardless      For the foregoing reasons, we REVERSE the district
of how insignificant they may appear in relation to equitable         court’s grant of Defendant’s motion for summary judgment
issues.”). Indeed, Plaintiffs expressly demanded a jury trial         as to Plaintiffs’ First Amendment claims and REMAND to
in the first amended complaint, and this demand was timely.           the district court for further proceedings. We AFFIRM the
See Local 783, Allied Indus. Workers of Am., AFL-CIO v.               district court’s denial of Plaintiffs’ motion for leave to amend
Gen. Elec. Co., 471 F.2d 751, 755 (6th Cir.), cert. denied, 414       and conclude that the district court did not err when it failed
U.S. 822 (1973). Although Plaintiffs preserved their right to         to grant Plaintiffs’ motion for a jury trial.
a trial by jury, a district court is not required to impanel a jury
unless a trial will take place. In the instant case, no trial took
place because the district court disposed of all of Plaintiffs’
claims on Daeschner’s motions for summary judgment. If
there are no issues for a jury, it is not error for the district
court to dismiss the Plaintiffs’ claims pursuant to a summary
judgment motion, thereby implicitly denying their demand
and motion for a jury trial.
  Our reversal of the district court’s grant of summary
judgment on Plaintiffs’ First Amendment claims does not
change this result. After our opinion today, Plaintiffs are left           28
with their equitable claims for declaratory and injunctive                   W hile it is true that declaratory relief can be legal rather than
relief based on a theory of First Amendment retaliation.              equitable, “[s]eeking declaratory relief does not entitle one to a jury trial
                                                                      where the right to a jury trial does not otherwise exist.” Golden, 73 F.3d
Because we have affirmed the district court’s denial of               at 662.
No. 01-6118                   Leary et al. v. Daeschner     37    38    Leary et al. v. Daeschner                 No. 01-6118

                    _________________                                  A. Yes, she is.
                                                                       Q. And she has alleged and said that she speaks out.
                        DISSENT                                        A. Yes. Yells out. She speaks out.
                    _________________                                  Q. Yells out, speaks out, whatever. And that she is
                                                                       one of the more ringleaders or prominent people who
   ALICE M. BATCHELDER, Circuit Judge, dissenting. I                   have positions on issues such as this?
respectfully dissent. Although I agree with the majority               A. Yes.
opinion with respect to its holdings regarding the motion for          Q. That’s true?
leave to amend and the motion for jury trial, I dissent because        A. Yes.
I find no evidence in this record that Appellants were                 Q. And she’s alleging here that it’s because of this
transferred because they exercised their First Amendment               that she’s being transferred?
rights. Neither do I find any basis upon which Superintendent          A. It’s probably because of that and some other
Daeschner could be held liable, even if the Appellants could           things.
demonstrate that their transfers were retaliatory. I would             Q. Well –
therefore AFFIRM the district court’s grant of summary                 A. Which says that she’s unwilling to embrace
judgment.                                                              change.
                                                                       Q. Well, you said she was unwilling to embrace the
                              I.                                       collaborative model. Is she also being transferred
                                                                       because she’s just a vocal persona and yells out?
   The “Evidence” Upon Which the Majority Bases its                    A. No, I wouldn’t think so. We also had a DI program,
               Holding is Not Evidence                                 a Direct Instruction reading program, I mentioned when
  The majority holds that the Appellants have provided                 I first begun the testimony.
evidence sufficient to create a genuine issue of fact regarding        Q. Uh-huh.
the reason for their transfers. The evidence to which the              A. And there was some teachers who participated in that
majority points as “most promising” includes Ms. Howard’s              there were some who didn’t and wouldn’t. She was one
testimony that, as the majority quotes it, “Leary was                  of those, also.
‘probably [transferred] because of [her speaking out on                Q. One of those who?
school-related issues] and some other things,’ J.A. at 296             A. Would not embrace that change.
(Howard Test.),” a statement about which the majority                  Q. Okay. Well, you said that she was properly
opinion notes, “Howard later retracted this testimony, stating         characterizing herself as one of the more prominent
that Leary was transferred because she failed to ‘embrace              ringleaders or agitators for something including
change.’ J.A. at 297 (Howard Test.)” Both this quotation and           discipline or whatever at the school. Was that the reason
the pronouncement that it was retracted mischaracterize                she was recommended or at least signed off by you as
Howard’s testimony. The testimony to which the majority                being appropriate for transfer as not a team player?
opinion cites reads in full as follows:                                A. Yes.
                                                                       Q. Because she wasn’t one of the leaders?
    Q. Well, was there anything else? I mean, Ms. Leary                A. No, because she wouldn’t embrace the changes in our
    alleged she was a vocal person. Is she?                            school.
No. 01-6118                   Leary et al. v. Daeschner    39    40   Leary et al. v. Daeschner                   No. 01-6118

J.A. 296-97. Ms. Howard did not state that Leary was             should stand for itself.” J.A. 203. Bald assertions,
transferred because of her speaking out; Howard merely           unsupported by any personal knowledge or facts, but rather
confirmed that this is what Leary alleged. Ms. Howard’s own      reached by process of elimination, are not evidence.
testimony was that Leary was transferred because “she’s
unwilling to embrace change.” J.A. at 297. Ms. Howard               Appellants’ own assertions as to why they were transferred
simply did not make the statement that the majority points to    likewise lack any basis in fact. The majority opinion admits
as “most promising;” to be charitable, the majority opinion      that both Leary and Williams were “baffled” by their
cobbles together parts of a statement taken out of context. I    transfers. To support its holding that the Appellants have
find the majority’s “most promising” support altogether          nonetheless presented evidence of retaliatory motivation, the
wanting.                                                         majority opinion declares that: “Leary testified that she had
                                                                 no idea why she was transferred, so her ‘best guess is being
  If other evidence supported the majority opinion, I could      too vocal,’ J.A. at 338-39 (Leary Test.)” [Majority Opinion at
perhaps agree with its holding. But it does not. Instead, the    20] and Williams “seemed baffled by her transfer and testified
majority cites “testimony from fellow teachers expressing        that ‘[t]he only conclusion I could come to is that I was too
opinions that Appellants were transferred because they were      vocal.’ J.A. at 460 (Williams Test.).” [Majority Opinion at
too vocal.” [ Majority Opinion at 19-20]. This opinion           20]. The Appellants’ guesses are just that; they are not
testimony is not evidence. It is pure conjecture, unsupported    evidence. Therefore, because there is not even a scintilla of
by any personal knowledge or foundation.                         evidence upon which the jury could find in Appellants’ favor,
                                                                 I cannot join in the majority’s opinion.
   For example, one of the peer teachers to whom Appellants
point, Ms. Toliafero, responded to the question of why the                                     II.
Appellants were transferred, “I think because they were
vocal.” J.A. 447. No foundation whatever was laid for this         Appellants Established No Connection Between Their
belief. According to Appellants’ brief, Ms. Shalda, another            Speech and Defendant Daeschner’s Actions
of Appellants’ colleagues, also surmised that Appellants’
were transferred because they were outspoken. The record,           As the majority rightly recognizes, supervisory liability is
however, reflects that Ms. Schalda’s testimony (J.A. 431-36)     only appropriate in § 1983 actions when “the supervisor
includes no mention of a belief that Appellants were             encouraged the specific incident of misconduct or in some
transferred for this reason. Another teacher, Ms. Drescher,      other way directly participated in it.” Bellamy, 729 F.2d at
testified that Appellants were “among the more vocal people”     421. In the prior published opinion in this case, a panel of
at the school, (J.A. 200), and that in her opinion, Appellants   this court suggested that merely “showing that [Daeschner]
were transferred “because they spoke out about the lack of       did not know the Appellants personally” cannot shield him
discipline.” J.A. 202. When the district court asked Ms.         from liability. Leary, 228 F.3d at 740. And it opined that
Drescher why she believed that, Ms. Drescher’s answer was        failure to perform his job properly, acquiescing in
“[f]or whatever reason would there be.” J.A. 203. This           constitutional violations, or encouraging subordinates to
enigmatic answer did not satisfy the district court, so it       transfer “particularly vocal” teachers could sustain a trier of
pressed further, “[s]o done through a process of elimination?”   fact’s conclusion that Daeschner is liable for constitutional
J.A. 203. Ms. Drescher answered, “I have taught with them        violations. See id. In short, if evidence were proffered that
all. If they have 30 years of good teaching evaluations, that    Daeschner acquiesced or encouraged Appellants’ transfer due
No. 01-6118                    Leary et al. v. Daeschner      41    42    Leary et al. v. Daeschner                    No. 01-6118

to their outspoken criticisms, then a trier of fact might find      liability would effectively preclude the delegation of authority
him liable for constitutional violations.                           to subordinates at all, a result far afield from that required by
                                                                    any prior decision of this circuit or the Supreme Court.
   No such evidence, however, appears anywhere in the
record. Instead, it is clear from the record that the decision to     Because there is no evidence to support the conclusion that
transfer Appellants, and commensurate knowledge of their            Appellants’ exercise of free speech was a substantial factor in
proclivity for expressive conduct, rested solely on Dr.             their transfer, and, even if there were, there is no evidence to
Merriweather, Howard, and Bowlds. Moreover, Daeschner               support a finding that Daeschner encouraged or acquiesced in
specifically testified that he had “never had any contact with      the alleged constitutional violations, I respectfully dissent.
any of the Appellants until subsequent to the filing of this
action,” (J.A. 231) and he “was not aware that these
individuals had ever complained about anything.” J.A. 231.
The majority opinion twists this evidence into a basis for
finding supervisory liability, suggesting that it might support
a jury’s finding that Daeschner is liable for failure to do his
job or for relying on recommendations of his employees. But
neither of these constitutes encouragement or knowing
acquiescence.
   By holding supervisors potentially liable for all the actions
of those they supervise, even where the uncontroverted
evidence establishes no personal knowledge of a connection
between the adverse employment action and exercise of free
speech, and no basis for a finding that the supervisor knew or
should have known that the employees on whom he relied
were not reliable, the majority extends Monell liability far
beyond rational application. Indeed, the majority opinion
extends far beyond its logical bounds this court’s own
language from our prior opinion in this very case:
“Daeschner might be liable if the Appellants can show that he
encouraged his subordinates to transfer teachers who were
particularly vocal in speaking out against school policy
through his mandate to transfer those teachers who were not
‘team players.’” Leary, 228 F.3d at 740. The record contains
no evidence that Daeschner did so, and, in fact, it is hard to
imagine a case where a supervisor could be shown to have
less connection to the alleged constitutional violation. The
lengths to which the majority opinion suggests that
supervisors must to go in order to protect themselves from
