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

                             FOR THE TENTH CIRCUIT                         January 4, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
MARCIA MUHAMMAD,

      Plaintiff - Appellant,

v.                                                        No. 16-6046
                                                   (D.C. No. 5:15-CV-00059-R)
MYLISSA HALL, in her individual                           (W.D. Okla.)
capacity,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, PHILLIPS and McHUGH, Circuit Judges.
                 _________________________________

      Marcia Muhammad appeals from the district court’s Fed. R. Civ. P. 12(b)(6)

dismissal of her civil rights lawsuit concerning her non-selection for a teaching

position. She also appeals from the district court’s denials of her post-judgment

motions to reopen and to amend her complaint. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.




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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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

      After losing her job as an assistant principal, Ms. Muhammad raised

allegations of academic fraud and sued the school district. Later, she applied for a

teaching position at another school in the same district, whose principal was

Mylissa Hall. Ms. Hall was not the final decision-maker regarding employment of

teachers at her school, but she submitted hiring recommendations to her superiors.

      Ms. Muhammad and a former school board member, Angela Monson, met with

Ms. Hall before Ms. Muhammad submitted her application. At the meeting,

Ms. Muhammad disclosed her history with the school district, including the fraud

allegations and the litigation. Ms. Muhammad was advised that there was no

problem in hiring her, and she submitted her application and was interviewed.

Ms. Hall then offered her the position, recommending to her superiors that

Ms. Muhammad be hired. But Ms. Hall’s immediate superior, Karl Springer,

informed Ms. Monson that Ms. Muhammad would not be hired, and Ms. Hall

admitted to Ms. Monson that she (Ms. Hall) was told that she could not hire

Ms. Muhammad due to her history with the school district. Ms. Hall withdrew her

recommendation regarding Ms. Muhammad and filled the position with another

candidate.

      Ms. Muhammad sued the school district and Ms. Hall in state court, alleging

that they violated the Oklahoma Constitution by retaliating against her for exercising

her right to free speech. When she amended her original complaint to add claims

(1) under 42 U.S.C. § 1983 for retaliation in violation of the First Amendment, and

                                           2
(2) under 42 U.S.C. § 1985(2) for conspiracy to injure a party or witness on account

of having attended or testified before a federal court, the defendants removed the

action to federal court. Ms. Muhammad then filed her second amended complaint,

bringing the same federal and state claims against only Ms. Hall in her individual

capacity.

      The district court granted Ms. Hall’s Rule 12(b)(6) motion and dismissed the

second amended complaint. It held that Ms. Muhammad had not adequately pleaded

a § 1983 claim for First Amendment retaliation because she failed to include

sufficient facts to satisfy the elements for non-employer retaliation set forth in

Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000). It further held that she had

not adequately pleaded a claim under § 1985(2) because “[a]lthough two or more

persons may have conspired to withdraw [Ms. Muhammad]’s offer of employment,

there is no allegation of a meeting of the minds or agreement involving [Ms. Hall].”

Aplt. App. at 245. And it held that the claim under the Oklahoma Constitution was

precluded by the employee-immunity provision of Oklahoma’s Governmental Tort

Claims Act (GTCA), Okla. Stat. tit. 51, § 163(C). Ms. Muhammad filed a Rule 59(e)

motion, as well as a motion to amend accompanied by a proposed third amended

complaint. After the district court denied both of those motions, Ms. Muhammad

appealed.




                                            3
                                    DISCUSSION

I.    Rule 12(b)(6) Dismissal

      Ms. Muhammad first challenges the dismissal of the second amended

complaint. We review a Rule 12(b)(6) dismissal de novo. See Mocek v. City of

Albuquerque, 813 F.3d 912, 921 (10th Cir. 2015). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(internal quotation marks omitted). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. This standard “is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id. (internal quotation marks omitted). “[W]here the

well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has not shown—that the pleader is

entitled to relief.” Id. at 679 (brackets and internal quotation marks omitted).

      A.     Section 1983 Claim

      Ms. Muhammad’s § 1983 claim alleged that Ms. Hall, a non-final

decisionmaker, retaliated against her in violation of her First Amendment right to

free speech. Under Worrell, a plaintiff alleging retaliation by a non-employer must

show the following 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

                                            4
       activity; and (3) that the defendant’s adverse action was substantially
       motivated as a response to the plaintiff’s exercise of constitutionally
       protected conduct.
219 F.3d at 1212 (internal quotation marks omitted). Focusing on the second and

third elements, the district court held that Ms. Muhammad failed to present sufficient

facts to plausibly allege that Ms. Hall’s actions caused her not to be hired or that

Ms. Hall was substantially motivated by Ms. Muhammad’s protected activity.

       We agree with the district court. Assuming (without deciding) that

Ms. Muhammad’s reports and prior litigation qualified as constitutionally protected

activity, the facts set forth in the second amended complaint show that Ms. Hall was

ready and willing to hire Ms. Muhammad, but was prevented from doing so by her

superior. Thus, the second amended complaint does not plausibly establish that

Ms. Hall caused Ms. Muhammad to suffer an injury or that Ms. Hall was motivated

to do so by retaliation.

       This court has not yet decided whether a subordinate employee can be liable

for First Amendment retaliation when he or she merely acts at the direction of a

superior who desires to retaliate. See Trant v. Oklahoma, 754 F.3d 1158, 1170 n.5

(10th Cir. 2014) (stating that “[w]e have never held that true subordinate employees

may be liable for First Amendment retaliation claims” and declining to decide the

issue).1 Further, the other circuits are not of one mind. Compare King v. Zamiara,


       1
        Ms. Muhammad argues that Trant’s dicta is inapplicable because it refers to
“true subordinates,” 754 F.3d at 1170 n.5, and Ms. Hall would be Ms. Muhammad’s
superior rather than her subordinate. In the relationship between Ms. Hall and
Mr. Springer, however, Ms. Hall is the subordinate.
                                            5
680 F.3d 686, 696 (6th Cir. 2012) (“Individuals who aid in the implementation of an

adverse action at the instructions of a superior will be liable along with their superior

if they knew or should have known that the adverse action was unlawful.”), with

Johnson v. Louisiana, 369 F.3d 826, 831 (5th Cir. 2004) (“[O]nly final

decision-makers may be held liable for First Amendment retaliation employment

discrimination under § 1983.”). Because Ms. Muhammad did not establish the

Worrell elements, we need not decide the question here. See Trant, 754 F.3d at 1170

n.5.

       But this lack of precedent also means that the law is not clearly established, so

that Ms. Hall would be entitled to the protection of qualified immunity on this claim.2

See Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010) (“Ordinarily, in order for the

law to be clearly established, there must be a Supreme Court or Tenth Circuit

decision on point, or the clearly established weight of authority from other courts

must have found the law to be as the plaintiff maintains.” (internal quotation marks

omitted)).



       Ms. Muhammad also argues that Trant cannot supplant earlier circuit decisions
recognizing that a subordinate may be liable for retaliation. See, e.g., Maestas v.
Segura, 416 F.3d 1182, 1191 (10th Cir. 2005). But the cases she relies on involve a
“cat’s paw” theory, where a subordinate engages in retaliation by influencing a
superior’s decision. In contrast, this case involves the reverse situation, in which an
allegedly retaliating superior acted through a subordinate. This court has not yet
addressed whether the subordinate can be liable in a “reverse cat’s paw” situation.
       2
         The district court did not decide Ms. Hall’s entitlement to qualified
immunity, even though the Ms. Hall briefed the issue in her motion to dismiss. “Our
precedent allows us to reach the qualified immunity issue if the parties have had an
adequate opportunity to advance their arguments.” Worrell, 219 F.3d at 1215.
                                            6
       B.     Section 1985(2) Claim

       The district court dismissed Ms. Muhammad’s § 1985(2) conspiracy claim on

the ground that “[a]lthough two or more persons may have conspired to withdraw

[Ms. Muhammad]’s offer of employment, there is no allegation of a meeting of the

minds or agreement involving [Ms. Hall].” Aplt. App. at 245. Ms. Muhammad

argues that “it would appear that when the District Court exonerated Ms. Hall on one

hand for ‘just following orders’, it implicitly recognized ‘a meeting of the minds’.”

Aplt. Br. at 13.

       “To establish a conspiracy claim under 42 U.S.C. § 1985(2), a plaintiff must

prove three elements: (1) a conspiracy, (2) to deter attendance in court or testimony

by force or intimidation or to injure a witness for having appeared in court or

testified, and (3) injury to the plaintiff.” Hogan v. Winder, 762 F.3d 1096, 1113

(10th Cir. 2014). “The first element, a conspiracy, requires the combination of two

or more persons acting in concert. A plaintiff must allege, either by direct or

circumstantial evidence, a meeting of the minds or agreement among the defendants.

The conspiracy must be one that has the requisite statutory purpose . . . .” Brever v.

Rockwell Int’l Corp., 40 F.3d 1119, 1126 (10th Cir. 1994) (brackets, citations, and

internal quotation marks omitted).

       We agree with the district court that the allegations of the second amended

complaint do not plausibly show that Ms. Hall was involved in a “meeting of the

minds” for the purpose of retaliation. Rather, as with the § 1983 claim, the

allegations indicate that Ms. Hall had no intention of retaliating; she offered

                                           7
Ms. Muhammad the job, and withdrew her recommendation only at the insistence of

her supervisor. These facts do not plausibly show a § 1985(2) conspiracy involving

Ms. Hall. Further, it does not appear to be clearly established that merely following

her superior’s directive would make Ms. Hall a conspirator in violation of § 1985(2).

Accordingly, Ms. Hall would also be entitled to qualified immunity on this claim.

      C.     Oklahoma Constitutional Claim

      The district court dismissed Ms. Muhammad’s state constitutional claim under

the GTCA’s employee-immunity provision, which states, “[i]n no instance shall an

employee of the state or political subdivision acting within the scope of [her]

employment be named as defendant.” Okla. Stat. tit. 51, § 163(C). “Scope of

employment” is defined as “performance by an employee acting in good faith within

the duties of the employee’s office or employment.” Id. § 152(12). The district court

concluded that there were no plausible factual allegations supporting

Ms. Muhammad’s conclusory assertions that Ms. Hall was acting in bad faith when

she withdrew the employment recommendation.

      “An employee whose acts are malicious, willful, wanton and in bad faith is not

acting in the scope of his employment.” Mustain v. Grand River Dam Auth., 68 P.3d

991, 999 (Okla. 2003); see also Benshoof v. Niles, 380 P.3d 902, 907 (Okla. Civ.

App. 2016). The second amended complaint, however, does not supply any facts to

support a plausible inference that Ms. Hall acted maliciously, willfully, wantonly or

otherwise so as to place her conduct outside the scope of her employment. And as

for lesser conduct, the Supreme Court of Oklahoma recently clarified that reckless

                                           8
disregard “is distinguishable from acts that clearly show malice or bad faith” and

“do[es] not automatically rise to a level constituting malice or bad faith.” Gowens v.

Barstow, 364 P.3d 644, 652 (Okla. 2015). Even if the facts described could perhaps

reach the level of reckless disregard, the second amended complaint does not supply

any facts that plausibly show reckless disregard rising to the level of bad faith.

      Further, the Oklahoma courts have held that governmental employees who

made termination decisions in violation of law or policy were nevertheless acting

within the scope of their employment. See Shepard v. Compsource Okla., 209 P.3d

288, 293-94 (Okla. 2009); Wilson v. City of Tulsa, 91 P.3d 673, 679 (Okla. Civ. App.

2004). Both Shepard and Wilson noted that the governmental employers ratified the

employees’ actions, thereby establishing that the employees acted within the scope of

their employment. Shepard, 209 P.3d at 290, 293; Wilson, 91 P.3d at 678. The fact

that the termination decisions violated law or policy did not bring the employees

outside the scope of their employment and did not alone establish that the employees

acted with malicious intent. Shepard, 209 P.3d at 294; Wilson, 91 P.3d at 679.

“Acting in good faith and using poor judgment are not mutually exclusive and the use

of poor judgment does not, without more, exceed the scope of employment.” Wilson,

91 P.3d at 679.

      Here, in moving to dismiss the first amended complaint, the school district

(who was then a defendant) asserted that Ms. Hall was acting within the scope of her

employment. Aplt. App. at 134-35. This appears to be a ratification of Ms. Hall’s

conduct, thereby establishing that she acted within the scope of her employment. See

                                            9
Shepard, 209 P.3d at 293-94; Wilson, 91 P.3d at 678. And, as discussed, the second

amended complaint does not allege any facts that would plausibly establish malice.

See Shepard, 209 P.3d at 294; Wilson, 91 P.3d at 679. In short, Shepard and Wilson

support affording Ms. Hall immunity under the GTCA.

II.   Motion to Amend

      After the district court dismissed the second amended complaint,

Ms. Muhammad filed a Rule 59(e) motion to reopen that would allow her to amend

her complaint. She concurrently filed a motion to reopen that attached a proposed

third amended complaint. The district court denied the motions, concluding that

amendment would be futile. Although we generally review denial of reopening and

denial of amendment for abuse of discretion, Etherton v. Owners Ins. Co., 829 F.3d

1209, 1228 (10th Cir. 2016) (Rule 59(e) motion); Jones v. Norton, 809 F.3d 564, 579

(10th Cir. 2015), cert. denied, 137 S. Ct. 197 (2016) (motion to amend), we review a

determination of futility de novo, Jones, 809 F.3d at 579.

      Ms. Muhammad’s proposed third amended complaint principally added

allegations that when the current litigation was in state court, Ms. Hall was

questioned and denied that Ms. Muhammad was offered a position, denied that

Ms. Hall was aware of Ms. Muhammad’s reports of academic fraud, and denied that

Ms. Hall acted at the direction or suggestion of any other school official. It further

averred that these denials could lead to inferences that Ms. Hall entered into a

meeting of minds to retaliate against Ms. Muhammad and took affirmative actions to



                                           10
join a conspiracy against Ms. Muhammad, both by withdrawing the offer and by

attempting to cover up the conspiracy.

      We consider only the additional facts, not the averments about possible legal

inferences therefrom. See Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must

accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions.”). “[O]nly a complaint that states a plausible claim for relief survives a

motion to dismiss.” Id. at 679. As Iqbal explains, “[t]he plausibility standard . . .

asks for more than a sheer possibility that a defendant has acted unlawfully. Where a

complaint pleads facts that are merely consistent with a defendant’s liability, it stops

short of the line between possibility and plausibility of entitlement to relief.” Id. at

678 (citation and internal quotation marks omitted). At best, Ms. Muhammad’s

additional facts are merely consistent with liability. They therefore stop short of

showing a plausible claim for relief against Ms. Hall. And “where the well-pleaded

facts do not permit the court to infer more than the mere possibility of misconduct,”

dismissal is appropriate because the plaintiff has failed to show entitlement to relief.

Id. at 679. The district court did not err in denying Ms. Muhammad leave to reopen

and to file her third amended complaint.




                                            11
                            CONCLUSION

The district court’s judgment is affirmed.


                                     Entered for the Court


                                     Timothy M. Tymkovich
                                     Chief Judge




                                   12
