                                                              FILED
                                                 United States Court of Appeals
                                                         Tenth Circuit

                                   PUBLISH              May 28, 2014
                                                     Elisabeth A. Shumaker
                  UNITED STATES COURT OF APPEALS         Clerk of Court

                                TENTH CIRCUIT



COLLIE M. TRANT,

      Plaintiff - Appellant,

v.                                              No. 13-6009

STATE OF OKLAHOMA; BOARD
OF MEDICOLEGAL
INVESTIGATIONS; OFFICE OF THE
CHIEF MEDICAL EXAMINER;
DEWAYNE ANDREWS, in his
individual and official capacities;
DOUGLAS STEWART, in his
individual and official capacities;
ROCKY McELVANY, in his
individual and official capacities; C.
MICHAEL OGLE, in his individual
and official capacities; CHARLES
CURTIS, in his individual and official
capacities; KARLIS SLOKA, in his
individual and official capacities;
CHRIS FERGUSON, in his individual
and official capacities; SHANDA
McKENNY, in her individual and
official capacities; CHEROKEE
BALLARD, in her individual and
official capacities; SANDRA
BALZER, in her individual and
official capacities; TOM JORDAN, in
his individual and official capacities,

      Defendants - Appellees.
          APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE WESTERN DISTRICT OF OKLAHOMA
                     (D.C. NO. 5:10-CV-00555-C)


Submitted on the Briefs

R. Scott Adams, Adams & Associates, Oklahoma City, Oklahoma, and Carl
Hughes, Hughes & Hughes, Edmond, Oklahoma, for Appellant.

Kevin L. McClure, Assistant Attorney General, Litigation Division,
Oklahoma Attorney General’s Office, Oklahoma City, Oklahoma, for Appellee
State of Oklahoma, and Dixie L. Coffey and Ronald E. Baze, Assistant Attorneys
General, Litigation Division, Oklahoma Attorney General’s Office, Oklahoma
City, Oklahoma, for Appellees Ferguson, Stewart, McElvany, Ogle, McKenny,
Sloka, Curtis, Jordan, Ballard, and Balzer.


Before HARTZ, TYMKOVICH, Circuit Judges, and JACKSON *, District
Judge.


TYMKOVICH, Circuit Judge.


      Dr. Collie Trant is the former Chief Medical Examiner for the State of

Oklahoma. Trant joined the Office of the Chief Medical Examiner at a time the

office was recovering from a series of public scandals. But Trant soon lost the

confidence of the Oklahoma Board of Medicolegal Investigations, to whom he

reported, and was terminated. Trant filed suit in Oklahoma state court alleging a

number of claims under federal and state law in connection with his tenure and


      *
          The Honorable R. Brooke Jackson, United States District Court Judge,
District of Colorado, sitting by designation.

                                       -2-
termination. Oklahoma subsequently consented to removal of the case to federal

court.

         The district court granted summary judgment in favor of the defendants on

Trant’s First Amendment retaliation claims brought under 42 U.S.C. § 1983. The

district court dismissed for lack of standing Trant’s claim seeking a declaratory

judgment the Board violated the Oklahoma Open Meetings Act. The court also

dismissed Trant’s breach of implied contract claim for failure to state a claim

under Oklahoma law.

         Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district

court’s grant of summary judgment in favor of defendants on Trant’s First

Amendment claims and its dismissal of Trant’s breach of implied contract claim.

We REVERSE the district court’s dismissal of Trant’s declaratory judgment claim

and REMAND for further proceedings consistent with this opinion.

                                  I. Background

         A. Factual Background

         Oklahoma’s Chief Medical Examiner conducts crime scene investigations

and autopsies and directs the Office of the Chief Medical Examiner (OCME).

The Board of Medicolegal Investigations oversees the operation of the OCME.

The Chief Medical Examiner serves “at the pleasure of the Board,” 63 Okla. Stat.

§ 934, and is directly responsible to the Board for the performance of his statutory

duties. Id. § 935.

                                          -3-
      The Board hired Trant in May 2009. Trant took responsibility for the

OCME at a difficult time for the agency. Shortly before Trant’s hiring, the

OCME endured a serious sexual misconduct scandal, which resulted in a grand

jury investigation and charges of sexual battery brought against the OCME’s

former chief investigator. The grand jury found “gross incompetence” on the part

of the OCME’s prior leadership. Around the same time, the OCME lost its

accreditation with the National Association of Medical Examiners, which it had

held for eighteen years. OCME employees brought sexual harassment claims

against the OCME, some of which remained unresolved at the time Trant joined

the office.

      Trant alleges that early in his tenure he discovered improprieties with the

grand jury investigation into the OCME employees’ sexual harassment claims.

Specifically, he believed that an investigator was encouraging employees to make

false sexual harassment allegations and to inflate overtime claims. Based on his

suspicions, he asked the Oklahoma Attorney General’s Office to review the grand

jury investigation.

      During this time, the Board adopted a plan to repair the agency’s damaged

reputation and improve its internal operations. As part of these efforts, the Board

created a new position of Chief Administrative Officer (CAO) and delegated most

of the OCME’s administrative duties to the CAO.

      Upon the Board’s recommendation, Trant hired Tom Jordan as the first

                                         -4-
CAO in December 2009. A conflict soon developed between them. Trant

objected to Jordan’s meetings with OCME employees held without Trant’s

knowledge. In late January 2010, Trant informed Jordan that he was taking over

supervision of two division directors that answered to Jordan under the Board’s

reorganization. Jordan informed Trant that he felt he did not have Trant’s support

to carry out his duties under the reorganization and that Trant was not effectively

managing the OCME.

      Soon after, Jordan expressed that he was considering resigning, which came

to the attention of some Board members. Three Board members conducted an

informal meeting with Trant and Jordan to address the conflict between them. No

resolution was reached. On January 28, 2010, Trant sent an email to Dewayne

Andrews, the Chairman of the Board. In the email, Trant expressed his belief that

the Board was considering terminating either him or Jordan, detailed his conflict

with Jordan, and revealed for the first time that he had documentation showing

that there were serious improprieties in the grand jury investigation of the sexual

misconduct allegations at the OCME. Later that morning, the Board released a

notice and agenda for a meeting to be held on February 1. The agenda listed

“Proposed Executive Session for Discussion and possible action on the

employment of Dr. Collie Trant.” App. 1533. On January 29, Trant forwarded

the emails he had pertaining to the grand jury investigation to several OCME

employees, including one of the agency’s investigators.

                                         -5-
      At the February 1 meeting, the Board went into a closed executive session.

Trant spoke for approximately twenty minutes about matters related to the alleged

improprieties with the grand jury investigation. Trant also stated that he would

retain counsel to report alleged wrongdoing on the part of the Board during the

grand jury investigation. He did not stay for the remainder of the meeting.

Jordan then expressed his negative opinions about Trant, and the Board heard

allegations that Trant had sexually harassed Cherokee Ballard, an OCME

employee. 1 The Board discussed whether Trant’s comments amounted to sexual

harassment and how to respond to the allegations.

      The Board then returned to open session and voted unanimously to place

Trant on administrative leave with pay “pending investigation into concerns

raised during the Executive Session.” App. 3802. According to the terms of his

administrative leave, Trant’s sole point of contact for medical matters was Dr.

Eric Duval. Any non-medical matters were to be directed to the Board members.

Board member Chris Ferguson communicated these terms to Trant. Trant

nevertheless tried to contact three OCME employees, including Ballard.

      The next day, the media reported Trant’s suspension and his allegations

regarding the grand jury investigation. On February 3, the Board provided notice

of another meeting for February 5. On February 4, newspapers reported that


      1
      Trant admits to calling Ballard an expletive in the presence of another
OCME employee and commenting to Ballard on the size of her breasts.

                                        -6-
Trant’s attorney stated that Trant would report the emails pertaining to the grand

jury investigation to outside authorities. At the February 5 meeting, the Board

went into executive session and upon returning to open session, terminated Trant.

According to the notes of Sandra Balzer, an assistant Attorney General who

represented the Board, the Board discussed approximately a dozen reasons for

Trant’s termination, including his threat to sue the Board. Other reasons were

Trant’s contact with Ballard and OCME employees in violation of the terms of his

administrative leave, the inappropriate remarks pertaining to Ballard, and the

management issues at the OCME.

      B. Procedural Background

      Trant filed suit in Oklahoma state court, alleging sixteen state and federal

law claims against the state, the Board members, and certain OCME employees.

Ballard removed the suit to federal court, and the state consented to removal. The

district court granted the defendants’ motion to dismiss Trant’s First Amendment

and Due Process Clause claims, holding that the defendants were entitled to

qualified immunity. Trant appealed the dismissals.

      We reversed the district court’s dismissal of Trant’s First Amendment

claim and affirmed its dismissal of his Due Process Clause claims. See Trant v.

Oklahoma, 426 F. App’x 653 (10th Cir. 2011) (Trant I). We held that two of

Trant’s statements were outside the scope of his employment and thus may be the

bases for a First Amendment retaliation claim. These statements were (1) Trant’s

                                         -7-
threat to retain counsel to report any wrongdoing by Board members related to the

grand jury investigation; and (2) counsel’s statement about the possibility that

Trant would reveal the grand jury emails to outside authorities.

      On remand, the defendants renewed their motions to dismiss Trant’s

remaining state law claims and moved for summary judgment on his First

Amendment claims. The district court disposed of the claims in two separate

orders. See Trant v. Oklahoma, 874 F. Supp. 2d 1294 (W.D. Okla. 2012); Trant

v. Oklahoma ex rel. Bd. of Medicolegal Investigations, No. CIV-10-555-C, 2012

WL 6690358 (W.D. Okla. Dec. 21, 2012). The district court dismissed Trant’s

claims for breach of implied contract and mandamus relief. Trant, 874 F. Supp.

2d at 1301–03, 1306 n.9. The court also dismissed Trant’s claim for a declaratory

judgment that the Board violated the Open Meetings Act. Trant, 2012 WL

6690358, at *4. The court reasoned that Trant’s termination was not redressable

by the court and he therefore lacked standing to bring the declaratory judgment

action. The court also granted summary judgment for the defendants on Trant’s

First Amendment claims and remanded the remaining state law claims to state

court. Id. at *10. This appeal followed.

                                   II. Analysis

      Trant seeks reversal of the district court’s decisions on his First

Amendment, declaratory judgment, mandamus, and breach of implied contract

claims. We agree with the district court on the federal claims and most of the

                                           -8-
state claims, but we conclude that Trant might have standing to pursue his

declaratory judgment claim for a violation of the Oklahoma Open Meetings Act,

assuming the district court retains supplemental jurisdiction on remand.

      A. First Amendment Claims

             1. Retaliation Claim Against the Board

      Trant argues that the Board terminated him in retaliation for his and his

counsel’s statements threatening to reveal information related to the grand jury

investigation to authorities. The familiar Garcetti/Pickering 2 analysis governs

First Amendment retaliation claims. See Brammer-Hoelter v. Twin Peaks Charter

Acad., 492 F.3d 1192, 1202 (10th Cir. 2007). This test comprises five elements:

             (1) whether the speech was made pursuant to an
             employee’s official duties; (2) whether the speech was
             on a matter of public concern; (3) whether the
             government’s interests, as employer, in promoting the
             efficiency of the public service are sufficient to
             outweigh the plaintiff’s free speech interests; (4)
             whether the protected speech was a motivating factor in
             the adverse employment action; and (5) whether the
             defendant would have reached the same employment
             decision in the absence of the protected conduct.

Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009). The first three

elements are issues of law for the court to decide, while the last two are factual

issues typically decided by the jury. Id. But see Cypert v. Indep. Sch. Dist. No.

I-050 of Osage Cnty., 661 F.3d 477, 483–84 (10th Cir. 2011) (affirming summary

      2
        Garcetti v. Ceballos, 547 U.S. 410 (2006); Pickering v. Bd. of Educ., 391
U.S. 563 (1968).

                                         -9-
judgment for defendants where plaintiff could not meet evidentiary burden at the

fourth step).

      At the first step, our previous opinion in this case concluded that two of

Trant’s statements were not made pursuant to his official duties—his statements

about retaining counsel and his counsel’s statements about reporting alleged

wrongdoing surrounding the grand jury investigation—and thus triggered First

Amendment protection. See Trant I, 426 F. App’x at 660–61. We therefore

proceed to the next four steps of the inquiry.

      At the second step, we determine whether the speech is a matter of public

concern. Brammer-Hoelter, 492 F.3d at 1202. Speech is a matter of public

concern if it is “of interest to the community,” id. at 1205, and we “focus on the

motive of the speaker and whether the speech is calculated to disclose misconduct

or merely deals with personal disputes and grievances unrelated to the public’s

interest.” Lighton v. Univ. of Utah, 209 F.3d 1213, 1224 (10th Cir. 2000).

“Statements revealing official impropriety usually involve matters of public

concern.” Brammer-Hoelter, 492 F.3d at 1205. The district court assumed,

without deciding, that Trant’s speech involved a matter of public concern, and we

agree. Irregularity in a grand jury investigation into a public agency’s alleged

misconduct is a matter of public concern. Although Trant’s speech may have

been motivated in part by his riff with the Board, the subject matter of the dispute

concerned misconduct in a grand jury investigation involving official impropriety,

                                         -10-
which is undoubtedly of interest to the community.

      Next, we determine “whether the employee’s interest in commenting on the

issue outweighs the interest of the state as employer.” Id. at 1203. The only

public employer interest that outweighs the employee’s free speech interest is

“avoiding direct disruption, by the speech itself, of the public employer’s internal

operations and employment relationships.” Id. at 1207 (quoting Flanagan v.

Munger, 890 F.2d 1557, 1566 (10th Cir. 1989)). When performing this step’s

balancing test,

              the statement will not be considered in a vacuum; the
              manner, time, and place of the employee’s expression
              are relevant, as is the context in which the dispute arose.
              We have previously recognized as pertinent
              considerations whether the statement impairs discipline
              by superiors or harmony among co-workers, has a
              detrimental impact on close working relationships for
              which personal loyalty and confidence are necessary, or
              impedes the performance of the speaker’s duties or
              interferes with the regular operation of the enterprise.

Rankin v. McPherson, 483 U.S. 378, 388 (1987). The employer’s interest in

regulating an employee’s speech varies “with the extent of authority and public

accountability the employee’s role entails.” Id. at 390; see also Moore v. City of

Wynnewood, 57 F.3d 924, 934 (10th Cir. 1995). The district court held that,

although the Board showed that many of Trant’s activities were disruptive, the

Board did not meet its burden in showing that Trant’s protected speech was itself

disruptive.


                                          -11-
      Because Trant’s claims can be resolved at a later step in the analysis, we

will assume that the district court reached the correct conclusion. We note,

however, that the Board was not required to show that the speech had in fact

disrupted the OCME’s internal operations and employment relationships. It

needed only to establish that the speech could potentially become so disruptive to

the OCME’s operations as to outweigh Trant’s interest in the speech. See

Connick v. Myers, 461 U.S. 138, 151–52 (1983).

      At the fourth step, if the employee’s interest in the speech outweighs the

state’s, the employee must show that the speech was a “substantial factor or a

motivating factor in a detrimental employment decision.” Brammer-Hoelter, 492

F.3d at 1203. Even assuming the fourth step favors Trant, —that the Board

terminated Trant at least partially because of his statement about hiring

counsel—he does not show a fact dispute at the fifth step. 3

      At the fifth step, if the employee establishes that his or her protected


      3
         The district court did not address whether Trant’s counsel’s statement
about reporting wrongdoing to outside authorities was a motivating factor in his
termination. Based on our review of the record, we conclude there is no dispute
of material fact. Trant did not introduce any evidence that the Board members
were aware of these statements at the time it scheduled the February 5 meeting or
at the meeting itself. Trant can only argue that there was temporal proximity
between his counsel’s statement and Trant’s termination. But this does not create
a genuine issue of material fact as to whether Trant’s counsel’s statement was a
motivating factor in his termination. See Butler v. City of Prairie Village, 172
F.3d 736, 746 (10th Cir. 1999) (“The mere temporal proximity of Plaintiff's
protected speech to his termination is insufficient, without more, to establish
retaliatory motive.”).

                                        -12-
speech was a motivating factor in the adverse employment decision, “the burden

then shifts to the defendant, who must show by a preponderance of the evidence it

would have reached the same employment decision in the absence of the protected

activity.” Cragg v. City of Osawatomie, 143 F.3d 1343, 1346 (10th Cir. 1998)

(citing Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 287 (1977)). This

inquiry, also known as the Mt. Healthy analysis, arises from the Supreme Court’s

recognition that a “rule of causation which focuses solely on whether protected

conduct played a part” in an adverse employment decision “could place an

employee in a better position as a result of the exercise of constitutionally

protected conduct than he would have occupied had he done nothing.” Mt.

Healthy, 429 U.S. at 285; see also id. at 286 (“But [a borderline or marginal]

candidate ought not to be able, by engaging in [protected] conduct, to prevent his

employer from assessing his performance record and reaching a decision not to

rehire on the basis of that record, simply because the protected conduct makes the

employer more certain of the correctness of its decision.”); Hartman v. Moore,

547 U.S. 250, 260 (2006) (discussing Mt. Healthy) (“If there is a finding that

retaliation was not the but-for cause of the discharge, the claim fails for lack of

causal connection between unconstitutional motive and resulting harm, despite

proof of some retaliatory animus in the official’s mind.”); McKennon v. Nashville

Banner Publ’g Co., 513 U.S. 352, 359 (1995) (“We held [in Mt. Healthy] that if

the lawful reason alone would have sufficed to justify the firing, the employee

                                         -13-
could not prevail in a suit against the employer.”).

      The district court granted summary judgment for the Board because it

found the Board would have fired Trant regardless of his protected speech based

on the allegations of sexual harassment and insubordination after his suspension.

Trant acknowledged the incidents underlying the court’s holding, but he disputed

that they amounted to sexual harassment or insubordination. The district court

held, “Despite arguing that these grounds are merely pretext, Plaintiff has failed

to provide any evidence actually contradicting Defendants’ stated reasons for

termination. Thus, there is no issue of fact as to whether but for [Defendants’]

alleged retaliatory motive, Plaintiff’s employment would not have been

terminated.” Trant, 2012 WL 6690358, at *6.

      Trant argues that the district court improperly shifted the burden of proof

by requiring him to prove pretext at the summary judgment stage. He also argues

that the record demonstrates that there are factual disputes as to the sexual

harassment and insubordination allegations. We are not persuaded.

      Summary judgment is appropriate on the fifth step when “any reasonable

jury would [have found] that [the plaintiff] would have been terminated even

absent any desire on the Defendants’ part to punish him in retaliation for his

allegedly protected speech.” Anemone v. Metro. Transp. Auth., 629 F.3d 97, 117

(2d Cir. 2011); see also Couch v. Bd. of Trs. of Mem’l Hosp. of Carbon Cnty., 587

F.3d 1223, 1244–45 (10th Cir. 2009) (affirming summary judgment in part

                                         -14-
because defendants met their burden at the fifth step); Guilloty Perez v. Pierluisi,

339 F.3d 43, 59–60 (1st Cir. 2003) (granting defendants judgment as a matter of

law based on Mt. Healthy analysis); Heil v. Santoro, 147 F.3d 103, 110 (2d Cir.

1998); Harris v. Shelby Cnty. Bd. of Educ., 99 F.3d 1078, 1086 (11th Cir. 1996).

Thus, for example, in Anemone, the court found that the “undisputed evidence” of

the plaintiff’s insubordination and the employer’s “ongoing efforts to address

it—efforts beginning well before any allegedly protected conduct—” were

sufficient to meet the defendants’ burden at the summary judgment stage. 629

F.3d at 117. And it was significant that the plaintiff was aware that his job was in

jeopardy before he engaged in the protected conduct. See id. at 118. Anemone is

instructive in its discussion on the proper way to conduct a Mt. Healthy analysis:

              [A]lthough the language in Mt. Healthy refers to the
              plaintiff’s [protected] conduct, the Court’s analysis,
              properly understood, attempts to weigh the impact of the
              defendant’s impermissible reason on the defendant’s
              decision to act. . . . The relevant question then, with
              respect to Anemone’s speech to the [New York] Times, is
              not whether he would have suffered termination absent
              the speech itself, but rather whether even without the
              improper motivation the alleged retaliatory action would
              have occurred.

Id. at 120.

      Similarly, in Couch, we held that a public hospital had met its burden at the

fifth step because it would have taken the same actions against the plaintiff, a

staff physician at the hospital, even absent the plaintiff’s protected speech. 587


                                         -15-
F.3d at 1244–45. The plaintiff had accused other physicians at the hospital of

using alcohol and illegal drugs and forcefully advocated for changes in drug and

alcohol testing policy. Although the district court had granted summary judgment

for the defendants at the fourth step, we held that alternate grounds existed at the

fifth step of the Garcetti/Pickering test. Id. We concluded the alleged retaliatory

conduct—hospital investigations of allegations against the plaintiff concerning

disruptive conduct, billing fraud, and patient mistreatment and subsequent

corrective actions—was “entirely appropriate” considering the serious allegations

against the plaintiff and the recommendations of the investigations. Id. at 1245.

      The district court did not improperly shift the burden of proof to Trant at

the fifth step. In deciding that the Board would have fired Trant regardless of his

statements about hiring counsel, the district court concluded that the Board had

met its evidentiary burden at the fifth step. Trant’s bare assertion of pretext is

simply another way of arguing that the Board did not meet its burden of proof that

it would have fired Trant even absent his protected speech. But the reasons the

Board offered were sufficient to show that any retaliatory motive was not the but-

for cause of Trant’s termination.

      Considering the recent sexual harassment scandals at the OCME, Trant’s

admitted statements to and about Ballard provided the Board more than a

sufficient reason to terminate his at-will employment. Trant’s rebuttal evidence,

that his actions did not constitute sexual harassment under the law, does not call

                                         -16-
into question the soundness of the Board’s decision. The Board was justified in

firing Trant for his misconduct even if it did not result in an actionable sexual

harassment claim, especially as he was the head of an already scandal-plagued

agency. The Board had interests in the smooth functioning of the agency and

repairing the agency’s public image. Even though there may not have been an

actionable claim of sexual harassment, there was an interest in eliminating the

appearance of impropriety. Because “the lawful reason alone would have sufficed

to justify the firing,” Trant cannot succeed on his claim. McKennon, 513 U.S. at

359; see also Couch, 587 F.3d at 1245 (holding that hospital would have taken

same “entirely appropriate” actions concerning plaintiff’s alleged misconduct

even absent plaintiff’s protected speech).

      Trant asserts that his alleged insubordination was a pretext for his

termination. He supports his argument in two ways. First, he argues the Board’s

directive to contact only certain people was open to interpretation. This,

however, contradicts Trant’s own deposition testimony, in which he stated he

understood he was to contact only Dr. Duval or Chris Ferguson. See App. 2701.

Second, Trant points to the testimony of the Board’s Rule 30(b)(6) witness, 4 who

explained that there was no public reason offered for Trant’s termination. Trant

argues that this testimony shows that the Board was unable to identify a basis for


      4
        Rule 30(b)(6) of the Federal Rules of Civil Procedure permits an entity to
designate an individual to testify on its behalf in a deposition.

                                         -17-
termination and that his alleged insubordination was “an excuse seized upon to

attempt to avoid liability for the First Amendment violation.” Aplt. Br. at 48.

But the Rule 30(b)(6) witness’s testimony—that there was no public reason given

for Trant’s termination—is not inconsistent with Board members’ testimony that

Trant was insubordinate. And the handwritten notes from the February 5 meeting,

which indicate that the Board members fired Trant for violating the terms of his

administrative leave, undermine Trant’s claim that the insubordination was a post

hoc excuse for a retaliatory termination. We see no dispute of material fact.

      Finally, it is undisputed Trant’s conflict with the Board over the

management of the OCME predated any of Trant’s protected speech. Trant

recognized that his job was in jeopardy because of this conflict before any Board

meeting was called, as his January 28 email to Andrews makes clear. The

handwritten notes from the February 5 Board meeting list a dozen reasons for

terminating Trant. The Board members articulated several legitimate bases for

termination—in addition to those cited by the district court—including Trant’s

questionable judgment in holding onto the emails related to the grand jury

investigation for two months before revealing them, erratic behavior, conflicts

with legislators in the media, failure to follow the reorganization plan, and

ineffectiveness as Chief Medical Examiner. The impact of any impermissible

motive on the Board’s decision to act was minimal in light of Trant’s

inappropriate comments, insubordination, and other serious reasons for

                                         -18-
termination. See Anemone, 629 F.3d at 120.

      Because the Board has introduced sufficient undisputed evidence to

establish that it would have terminated Trant absent any alleged retaliatory

motive, the district court was correct in granting summary judgment for the

Board.

             2. Retaliation Claims Against Ballard, Jordan, and Balzer

      Trant next argues that Cherokee Ballard, Tom Jordan, and Sandra Balzer

took retaliatory actions against him as a result of his protected speech. These

claims require a different analysis since the Garcetti/Pickering test is not

appropriate for a First Amendment retaliation claim against a defendant who is

not the plaintiff’s employer. See Worrell v. Henry, 219 F.3d 1197, 1212 (10th

Cir. 2000). Instead, under Worrell, claims against non-employers must satisfy

three elements: “(1) that the plaintiff was engaged in constitutionally protected

activity; (2) that the defendant’s actions caused the plaintiff to suffer an injury

that would chill a person of ordinary firmness from continuing to engage in that

activity; and (3) that the defendant’s adverse action was substantially motivated

as a response to the plaintiff’s exercise of constitutionally protected conduct.” Id.

(internal quotation marks omitted).

      At the summary judgment stage, some facts must demonstrate the

defendants “acted on the basis of a culpable subjective state of mind” to satisfy

the third step. See McCook v. Spriner Sch. Dist., 44 F. App’x 896, 905 (10th Cir.

                                         -19-
2002) (internal quotation marks omitted). “If the defendant’s intent in urging

adverse action against the employee is not retaliatory (e.g., if the defendant

identifies legitimate problems with employee’s qualifications or performance) or

if the defendant’s conduct did not cause the adverse action, then the defendant

may successfully defend the retaliation claim.” Worrell, 219 F.3d at 1213. And

temporal proximity between the protected speech and the alleged retaliatory

conduct, without more, does not allow for an inference of a retaliatory motive.

See Butler v. City of Prairie Village, 172 F.3d 736, 746 (10th Cir. 1999).

      We previously concluded that Trant engaged in protected speech, so we

proceed to the second and third elements. 5

                   a. Cherokee Ballard

      The district court correctly granted summary judgment for Ballard. Trant

alleged that Ballard participated in the creation of a press release issued by state

Representative Randy Terrill that accused Trant of stealing OCME property. The

district court correctly determined that there was no record evidence of Ballard’s

participation. Trant notes that he was unable to provide specific evidence for his

allegations because the district court did not rule on his motion to compel Terrill

      5
         Ballard and Jordan were Trant’s subordinates. We have never held that
true subordinate employees may be liable for First Amendment retaliation claims.
The Fifth Circuit has expressly rejected the notion that true subordinates can be
liable for an employer’s retaliation—only final decisionmakers may be liable.
See, e.g., Johnson v. Louisiana, 369 F.3d 826, 831 (5th Cir. 2004). Because
Trant’s claims do not satisfy the Worrell test, it is not necessary to decide
whether true subordinates may be liable for retaliation claims.

                                         -20-
to provide testimony by the time Trant had to respond to the summary judgment

motion, but Trant does not allege the court erred in denying the motion.

      Trant also alleged that Ballard participated in reporting to the media that

Trant had stolen OCME property. But Trant mischaracterizes Ballard’s

statements. Ballard merely responded to inquiries at a press conference initiated

by Trant’s attorneys regarding missing OCME property. She explained that

records indicated that Trant had checked out certain items and had not returned

them. She never referred to the items as stolen. Further, there is no evidence that

her statements were substantially motivated by Trant’s protected speech.

                   b. Tom Jordan

      The district court also correctly granted summary judgment for Jordan.

Trant alleged that Jordan twice advised the media that Trant was “inept or

incompetent, was a liar and was mentally unstable.” Trant, 2012 WL 6690358, at

*8. Trant concedes that these feelings predated any protected speech, but alleges

that Jordan’s decision to go to the media was retaliatory. 6

      Trant has pointed to no evidence, besides temporal proximity, that Jordan’s

comments were substantially motivated by Trant’s protected speech or that Jordan

made his comments with a retaliatory intent. Jordan’s comments are plainly

      6
         There is a fact dispute as to whether Jordan made the alleged statements
to the media at all. Jordan asserts that any media quotes attributable to him
actually came from an email that Trant circulated to a Board member. For
purposes of summary judgment, we will resolve this factual dispute in favor of
the non-moving party and assume Jordan went to the media.

                                         -21-
directed at the ongoing dispute about Trant’s management of the OCME that

preceded any protected speech. They bear no relation to Trant’s protected speech,

which concerns hiring an attorney and reporting grand jury improprieties to

authorities. Indeed, Trant’s statements do not implicate Jordan because they

concerned only the Board, of which Jordan was not a member. This fact “implies

that [Jordan did not have] any motivation for retaliating against” Trant. Butler,

172 F.3d at 746.

                    c. Sandra Balzer

      Finally, we also see no error in the district court’s grant of summary

judgment for Balzer. Balzer, a lawyer in the Oklahoma Attorney General’s

office, was responsible for providing legal advice to the Board. Trant alleged that

she participated in his termination by condoning the unlawful retaliation against

him. Specifically, he argued that she condoned his termination by remaining

silent when the Board considered firing Trant on February 5 in part because of his

protected speech.

      Trant has not introduced any evidence that Balzer’s alleged condoning of

the action was substantially motivated by the protected speech. She advised the

Board on the legal definition of sexual harassment and advised them that they

possessed the authority to fire an at-will employee. There is no evidence that she

recommended Trant’s suspension or termination. Further, Trant provides no

evidence that Balzer deliberately avoided advising the Board about the

                                        -22-
unlawfulness of terminating an employee for his protected speech—nor is it clear

that the situation called for such advice.

                                      *      *   *

      The district court was correct in granting summary judgment for Ballard,

Jordan, and Balzer.

      B. Oklahoma Open Meetings Act Claim

      Trant next contends that the Board violated the Oklahoma Open Meetings

Act (OMA), 25 Okla. Stat. § 301 et seq., based on (1) its failure to give proper

notice of the meetings in which Trant’s employment was discussed; (2) his

exclusion from executive session meetings; and (3) its failure to open the

February 5 meeting to the public. He sought a declaratory judgment that his

termination was invalid because of the Board’s failure to comply with the OMA.

      The district court dismissed the claim for lack of standing. The court

explained that the only relief the court could grant to Trant was a declaratory

judgment that the termination was void as well as reinstatement to his position.

Reinstatement, however, was no longer possible because the position of Chief

Medical Examiner had long been filled. See, e.g., Rizzo v. Goode, 423 U.S. 362,

378 (1976) (“[F]ederal courts must be constantly mindful of the special delicacy

of the adjustment to be preserved between federal equitable power and State

administration of its own law.”) (internal quotation marks omitted). In this

posture, Trant’s claim lacked redressability, an essential element of Article III

                                          -23-
standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The

district court consequently dismissed Trant’s claim for lack of standing.

      Trant, however, argued below that other forms of relief were available to

the district court. For instance, he contends he was entitled to back pay for the

period of his unlawful removal, a claim the district court rejected on sovereign

immunity grounds. According to the district court, the defendants expressly

reserved their sovereign immunity rights as to any future claims for monetary

damages. The district court held that Trant “cannot now try to backdoor a

damages award and thwart the State’s reserved sovereign immunity by asking for

relief not initially sought in his Amended Petition of May 6, 2010.” Trant, 2012

WL 6690358, at *4. The court held that it thus lacked jurisdiction over the

monetary relief claim.

      We disagree on this point. The general presumption is that “removal is a

form of voluntary invocation of a federal court’s jurisdiction sufficient to waive

the State’s otherwise valid objection to litigation of a matter (here of state law) in

a federal forum.” Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613,

624 (2002). In Lapides, the Supreme Court addressed state law claims to which

the state had waived immunity in its own courts. Although the Court did not

clarify the extent to which the removal of state law claims results in forfeiture of

sovereign immunity, the presumption is that voluntary removal constitutes

consent to have the claim heard in a federal forum. Id. at 620; see also Meyers ex

                                         -24-
rel. Benzing v. Texas, 410 F.3d 236, 252 (5th Cir. 2005) (“[A] state’s removal of

a case into federal court, without more, clearly demonstrates the state’s consent to

invoke and submit to federal jurisdiction so that the general legal principle of

voluntary invocation requiring waiver of immunity ought to apply.”); Skelton v.

Henry, 390 F.3d 614, 618 (8th Cir. 2004) (“We focus on whether the state’s

action in litigation clearly invokes the jurisdiction of the federal court, not on the

intention of the state to waive immunity.”).

      But Lapides tells only half the story. A state enjoys another kind of

sovereign immunity besides immunity from suit that it may invoke even after

agreeing to removal—immunity from liability. Because immunity is an inherent

aspect of sovereignty that the states retained upon entering the Union, Alden v.

Maine, 527 U.S. 706, 713 (1999), it follows that state law should determine the

nature and scope of a state’s immunity. As the Fifth Circuit explained in Meyers,

             Rather than require that the states adhere to a prescribed
             plan, the [Supreme] Court’s decisions envision a
             Constitution that affords the states discretion to waive or
             vary the nature and elements of their sovereign
             immunity. Consequently, courts must look to the law of
             the particular state in determining whether it has
             established a separate immunity against liability for
             purposes of waiver. Unlike a state’s waiver of its
             immunity from suit in federal court, the state’s waiver or
             retention of a separate immunity from liability is not a
             matter in which there is an overriding federal interest
             justifying the application of a federal rule. For these
             reasons, we conclude that the Constitution permits a
             state whose law provides that it possesses an immunity
             from liability separate from its immunity from suit to

                                          -25-
             show that its waiver of one does not affect its enjoyment
             of the other.

Meyers, 410 F.3d at 253 (footnotes and citations omitted); see also Sossamon v.

Texas, 131 S. Ct. 1651, 1658, 179 L. Ed. 2d 700 (2011) (“[A] waiver of sovereign

immunity to other types of relief does not waive immunity to damages . . . .”);

Stroud v. McIntosh, 722 F.3d 1294, 1302 (11th Cir. 2013) (“[U]nder Lapides’s

reasoning, a state waives its immunity from a federal forum when it removes a

case, which voluntarily invokes the jurisdiction of that federal forum. But

nothing in Lapides suggests that a state waives any defense it would have enjoyed

in state court—including immunity from liability for particular claims.”), cert.

denied, 134 S. Ct. 958 (2014); Lombardo v. Penn., Dep’t of Pub. Welfare, 540

F.3d 190, 195 (3d Cir. 2008) (“State sovereign immunity thus comprises more

than just immunity from suit in federal court. It also includes a State’s immunity

from liability.”).

      Recognizing that a state may waive immunity from suit while retaining

immunity from liability for monetary damages is consistent with our holding in

Estes v. Wyoming Department of Transportation, 302 F.3d 1200 (10th Cir. 2002).

In Estes, we concluded that Wyoming’s removal of a federal law claim acted as

an unequivocal waiver of immunity from suit in federal court. Id. at 1205–06.

But our holding was based on the principle, articulated in Lapides, that the

Constitution cannot permit states to take inconsistent litigating positions by


                                        -26-
invoking and challenging federal court jurisdiction. See id. at 1206 (“It would

seem anomalous or inconsistent for a State both (1) to invoke federal jurisdiction,

thereby contending that the ‘Judicial power of the United States’ extends to the

case at hand, and (2) to claim Eleventh Amendment immunity, thereby denying

that the ‘Judicial power of the United States’ extends to the case at hand.”)

(quoting Lapides, 535 U.S. at 619); see also Stroud, 722 F.3d at 1302 (“[I]t would

be unfair to allow a state to remove to a federal forum and then assert a

jurisdictional immunity from that federal forum—this tactic would allow a state to

essentially use removal as a jurisdictional trump card in any case initiated in a

state forum that could fall under the original jurisdiction of the federal courts.”).

      Unlike effecting a waiver of immunity from suit through removal, however,

“the state’s waiver or retention of a separate immunity from liability is not a

matter in which there is an overriding federal interest justifying the application of

a federal rule.” Meyers, 410 F.3d at 253. A state does not gain an unfair

advantage asserting in federal court an affirmative defense it would have had in

state court. Accordingly, we recognize that a state may waive its immunity from

suit in a federal forum while retaining its immunity from liability.

      Oklahoma, by consenting to removal, waived its immunity from suit. In his

amended complaint in state court, Trant sought “reinstatement . . . with the

emoluments of his position including back pay.” App. 110. After Trant filed his

amended complaint, Ballard removed to federal court and the state filed a “Notice

                                         -27-
of Non-Objection of Removal.” 7 In this notice, the state consented to removal

and expressly reserved its sovereign immunity as to future claims, not all claims.

When Trant subsequently brought further state law claims and requests for

monetary relief in federal court, the state effectively invoked its reservation of

sovereign immunity. By consenting to removal, Oklahoma waived its immunity

from suit as to existing claims, including Trant’s claim for back pay.

       Nevertheless, the district court may have been correct to dismiss the claim

on standing grounds if Oklahoma did not waive its immunity from liability for

money damages. But if Oklahoma did waive its immunity from liability, which

must be assessed according to state law, Trant has standing to pursue his claim in

federal court. 8 We remand this claim to the district court. Considering the

resolution of all Trant’s federal claims, the district court must also reassess

whether maintaining supplemental jurisdiction is appropriate. 9


      7
        It is immaterial that the state did not initiate the removal proceedings
because all parties are required to agree to removal before a case can be removed.
28 U.S.C. § 1446(b)(2)(A).
      8
        The district court was correct in holding that the only redressable injury
Trant suffered was his termination at the February 5 meeting. Trant, 2012 WL
6690358, at *3. Thus, he may have standing only on OMA claims arising from
the Board’s handling of the February 5 meeting.
      9
        There are two related matters that must be addressed. First, although
Trant incorrectly stated “mandamus” as a separate cause of action in his amended
complaint, the district court is not correct that mandamus relief is unavailable. If
Trant’s OMA claim is ultimately successful, a writ of mandamus is a potential
form of relief. Second, it appears Oklahoma’s Whistleblower Act does not
                                                                       (continued...)

                                         -28-
      C. Breach of Implied Contract Claim

      Finally, Trant contends the district court erred in dismissing his breach of

implied contract claim. Trant argues that the OMA established an implied

contract between him and the state for certain procedural rights while the Board

considered terminating him.

      Trant relies on several Oklahoma cases. The first, from the Oklahoma

Court of Civil Appeals, holds that “personnel policies extending benefits [are]

unilateral offers which are accepted by continued performance.” Langdon v. Saga

Corp., 569 P.2d 524, 528 (Okla. Civ. App. 1976). Trant also points to two cases

in which the court held that the existence of an employee handbook created

enforceable procedural rights for an at-will employee. See Parker v. Town of

Chelsea, 263 F. App’x 740 (10th Cir. 2008); Kester v. City of Stilwell, 933 P.2d

952, 953 (Okla. Civ. App. 1997). He argues “the existing applicable law is part

of every contract as if it were expressly referred to or incorporated within the

agreement.” Aplt. Br. at 27 (quoting East Cent. Oklahoma Electric Coop., Inc. v.

Public Service Co., 469 P.2d 662 (Okla. 1970)). He also argues that statutory

procedural protections for state employees who were terminated may provide a

cause of action for breach of implied contract. See, e.g., In re City of Durant,

      9
        (...continued)
require Trant to exhaust his administrative remedies before seeking equitable
relief for his OMA claim. The Whistleblower Act does not require exhaustion for
claims for relief based on an alleged willful violation of the OMA. See 74 Okla.
Stat. § 840-2.5(b), (c), (g); 74 Okla. Stat. § 840-2.6.

                                        -29-
2002 OK 52, 50 P.3d 218 (Okla. 2002).

      We disagree. Durant did not hold that public employees’ procedural rights

provided the basis for a breach of contract claim. Rather, the court simply

enforced the express statutory rights granted to a specific class of employees by

virtue of their membership status in a pension system. The OMA, in contrast,

does not guarantee an employee any procedural rights by virtue of his

employment. The OMA was enacted for the public’s benefit and not to provide a

private right of action in employment matters. See 25 Okla. Stat. § 302 (“It is the

public policy of the State of Oklahoma to encourage and facilitate an informed

citizenry’s understanding of the governmental processes and governmental

problems.”); see also Rabin v. Bartlesville Redevelopment Trust Auth., 2013 OK

CIV APP 72 ¶ 9, 308 P.3d 191, 193 (Okla. Civ. App. 2013) (“The legislature

enacted the O[klahoma] OMA for the public’s benefit, and it is to be construed

liberally in favor of the public.”) (internal quotation marks omitted). Trant points

to no case supporting his contention that a state agency’s employees derive

private contractual procedural rights from the OMA.

      Employees of agencies subject to the OMA may incidentally benefit from

procedures that govern meetings and may be able to challenge failures to comply

with the OMA. The OMA contains a provision allowing for suits to overturn

decisions made during meetings that violated the statute’s procedural

requirements. See 25 Okla. Stat. § 313. Indeed, Trant may continue to challenge

                                        -30-
his termination for the Board’s alleged lack of compliance with the OMA and

seek appropriate relief through his unresolved declaratory judgment action. See

Graybill v. Okla. State Bd. of Educ., 585 P.2d 1358, 1359–60 (Okla. 1978);

Oldham v. Drummond Bd. of Educ., 542 P.2d 1309, 1310–11 (Okla. 1975). But

he cannot seek reinstatement or damages on a breach of implied contract theory.

      The OMA does not constitute a direct promise to any employee, nor is it a

statutory scheme to provide individual relief to a particular class of employees.

Trant therefore has no claim for a breach of implied contract based on alleged

violations of the OMA.

                                III. Conclusion

      We AFFIRM the district court’s grant of summary judgment for the

defendants on Trant’s First Amendment claims and AFFIRM the dismissal of

Trant’s breach of implied contract claim; we REVERSE the district court’s

dismissal of Trant’s Oklahoma Open Meetings Act claim; and we REMAND for

further proceedings consistent with this opinion.




                                        -31-
