                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                     UNITED STATES COURT OF APPEALS August 31, 2011
                                                              Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT
                                                                  Clerk of Court


    GINGER JAMES; DEBORAH
    TENNISON,

               Plaintiffs-Appellants,

    v.                                                  No. 10-5124
                                           (D.C. No. 4:09-CV-00456-CVE-FHM)
    INDEPENDENT SCHOOL DISTRICT                         (N.D. Okla.)
    NO. I-050 OF OSAGE COUNTY,
    a/k/a Prue Public Schools; RON
    MEADOWS, GERALD JACKSON,
    VALERIE TRASTER and SYLVIA
    HENDRIX, in their individual and
    official capacities,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, EBEL and O’BRIEN, Circuit Judges.


         Bringing suit under 42 U.S.C. § 1983, Ginger James and Deborah Tennison

(together, the plaintiffs) alleged defendants’ termination of their employment with



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
the Prue, Oklahoma, public school district (the District) violated their First and

Fourteenth Amendment rights. They appeal from a summary judgment rejecting

their claims, in which the district court determined (1) their pre-termination

hearing satisfied their due-process rights, and (2) they failed to show their speech

was a motivating factor for the termination. We affirm. 1

                                    Background

      Defendants are the District and four individuals who were members of the

Prue Board of Education (the Board) during the relevant times. The District is

small, with a total of approximately 310 students. James was the elementary

school principal, and Tennison was the high school principal. They both had

administrator contracts, which included employment security provisions.

      In February 2008, defendant Ron Meadows was elected to the Board with a

campaign calling for change, including the dismissals of some staff. According to

the testimony of Melvina Prather, the Interim Superintendent from April to June,

2008, when she met with Meadows on several occasions, he spoke about firing

certain employees, including plaintiffs, because he did not think they could do

their jobs. Another Board member, defendant Gerald Jackson, was present with

Meadows on one of those occasions. 2 Jackson also said he wanted those

1
      We have jurisdiction under 28 U.S.C. § 1291.
2
      Plaintiffs submitted both an affidavit and deposition testimony from
Prather. The two were not consistent, as the affidavit stated Jackson several times
                                                                      (continued...)

                                         -2-
employees fired. Prather refused to dismiss the employees. A new

Superintendent, Randy Cottrell, was hired in the summer of 2008. He testified

that during his interview, Meadows asked him if he would have a problem

dismissing administrators. Also, during a car ride around town, Cottrell (in the

back seat) heard Meadows and a third party (in the front seat) discuss dismissing

plaintiffs.

       In July 2008, however, the Board unanimously voted to approve plaintiffs’

contracts for the 2008-2009 school year. A few months later, the Board became

concerned about the District’s finances. It initiated a financial investigation by

retaining a financial consultant and, in November, terminated the treasurer’s

employment. 3 In December, it hired Douglas Jones to be the new assistant

treasurer. It also suspended Cottrell, who eventually resigned and was succeeded

by Phyllis Tarrant. At the January 2009 Board meeting, Jones advised the Board

it was in a financial crisis.




2
 (...continued)
asked her to fire the employees, but the deposition testimony identified only one
meeting involving Jackson. We rely on the deposition testimony because the
deposition gave Prather the opportunity to explain the statements in the affidavit.
3
      The termination of the treasurer’s employment is the subject of another
appeal before this court. See Bunch v. Indep. Sch. Dist. No. I-050, No. 10-5109.
An appeal was also brought by an employee whose contract was not renewed at
the end of the 2008-2009 school year. See Cypert v. Indep. Sch. Dist. No. I-050,
No. 10-5122.

                                         -3-
      On February 2, 2009, the Board heard a report on the District’s financial

condition. The Board (including a fifth, non-defendant member, Donald Horton)

then unanimously approved a motion for the Board’s attorney to notify plaintiffs

of their possible dismissal and their right to a hearing. The next day, the

District’s attorney notified plaintiffs he would recommend their dismissal to the

Board “[d]ue to a lack of funds,” elimination of their positions, and the District’s

best interest. Aplee. Supp. App. at 219, 221. Plaintiffs availed themselves of

their right to a pre-termination hearing.

      Their joint hearing was held on February 23, 2009. Jones testified the

District’s spending was exceeding its revenues and the problem had reached a

crisis level. Although he was still looking at the books, which were in some

disarray, he was concerned the District would run out of money before the end of

the school year and would have no carryover for 2009-2010. He also was

concerned the District’s revenues would decline further in the next year. He

opined, “the board will have to look at every program in the district going

forward to see where money can be saved,” id. at 255, and “the district is on a

very calamity course if things don’t change,” id. at 259. Without recommending

any particular positions to be cut, Jones further opined there would have to be

some reduction in personnel and it appeared the District had too many

administrators.




                                            -4-
       Plaintiffs called an expert witness, Bill Bentley, who testified it was

inappropriate to eliminate plaintiffs’ positions because “there has been no effort

to reduce expenditures” and, given the projected revenue shortfalls, it was

inexplicable why the financial issues had not been addressed earlier. Id. at 273.

But he did not challenge Jones’ calculations:

       I have ever[y] reason to believe that his figures are accurate,
       although I have not verified them because I couldn’t see the
       expenditure and revenue reports, but I trust Mr. Jones, I think he
       knows what he is doing[;] he is a former assistant superintendent and
       been working as a treasurer for a long time. So I trust his figures.

Id.; see also id. at 277 (stating Bentley thought Jones’ best case/worst case

scenario “could be accurate”).

       After an executive-session discussion, the Board (with Horton dissenting)

concluded the District was in a financial crisis and needed to cut spending. It

also concluded the District’s administrative costs were excessive. Eliminating the

positions of an elementary and a high-school principal, it decided, would have the

least impact on the students and was in the District’s best interest. Accordingly,

the Board voted to eliminate the positions due to lack of funds and to dismiss the

plaintiffs.

       Plaintiffs claimed the pre-termination hearing did not satisfy their right to

due process. They also alleged the termination was in retaliation for their

exercise of free speech rights because, in the fall of 2008, they had supported a




                                          -5-
state-court petition calling for a grand jury investigation into the activities of

Board members. Plaintiffs appeal from the summary judgment. 3

                                       Analysis

      “We review de novo a grant of summary judgment, applying the same

standard that governs the district court.” Lauck v. Campbell Cnty., 627 F.3d 805,

809 (10th Cir. 2010). We view “the evidence in the light most favorable to the

appellant.” Meiners v. Univ. of Kan., 359 F.3d 1222, 1229 (10th Cir. 2004).

Summary judgment is appropriate when “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

I.    Due Process

      No defendant contends plaintiffs did not have a protected property interest

in their employment or were not entitled to due process in connection with the

termination. Plaintiffs, on the other hand, do not now contend their employment

could not be terminated for legitimate fiscal reasons. Instead, they allege three

procedural due-process violations: (1) the tribunal was biased; (2) they could not




3
       Plaintiffs do not appeal from the dismissal of their state-law claims. The
district court declined to exercise supplemental jurisdiction over them after
rejecting the federal claims.

                                           -6-
confront anyone who made the recommendation to terminate their contracts; and

(3) the hearing was a sham. 4

      A.     Impartial Tribunal

      Plaintiffs argue the four individual defendants were biased, thus depriving

them of an impartial tribunal. “Impartiality of the tribunal is an essential element

of due process.” Riggins v. Goodman, 572 F.3d 1101, 1112 (10th Cir. 2009).

Impartiality may be affected by a “personal or financial stake” in the outcome or

“personal animosity.” Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ.

Ass’n, 426 U.S. 482, 491-92 (1976). But because “a person claiming bias on the

part of an administrative tribunal must overcome a presumption of honesty and

integrity in those serving as adjudicators,” “a substantial showing of personal bias

is required to disqualify a hearing officer or tribunal.” Riggins, 572 F.3d at 1112

(quotations omitted).

      Plaintiffs assert the district court erred in characterizing their evidence as

hearsay and speculation. We acknowledge some of the evidence was testimony

from third parties about statements by the individual defendants. But such

statements appear to qualify as admissions of a party opponent, admissible under

Fed. R. Evid. 801(d)(2). Nevertheless, the district court correctly decided some

4
       Before the district court, plaintiffs alleged both procedural and substantive
due process violations. The trial court decided the allegations did not rise to the
level of a substantive due process violation. Their brief mentions substantive due
process only in passing. They have waived our review of that issue. See Therrien
v. Target Corp., 617 F.3d 1242, 1253 (10th Cir. 2010).

                                         -7-
of their evidence, even though it was testimony under oath, was unsupported

speculation. Horton, for example, offered an opinion, to wit, Meadows and

Jackson had formed a plan to dismiss the targeted employees, and Traster and

Hendrix went along. The problem is his opinion testimony is unsupported by

facts. “Unsubstantiated allegations carry no probative weight in summary

judgment proceedings. To defeat a motion for summary judgment, evidence,

including testimony, must be based on more than mere speculation, conjecture, or

surmise.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004)

(citation omitted).

      Although some of the evidence is vague, there is admissible evidence about

Meadows campaigning for the Board on a platform for change, he believed

plaintiffs were not capable of performing their jobs, and he and other Board

members made statements about dismissing plaintiffs in the summer and fall of

2008. But the record strongly suggests the individual defendants were not utterly

committed to “getting rid of” plaintiffs, as averred; the Board unanimously voted

to renew plaintiffs’ employment in March 2008 and accepted their contracts in

July 2008. More importantly, the issue before the Board in February 2009 was

not whether plaintiffs were the best people for their jobs, but whether the District

would better be served by eliminating their jobs altogether.

       To disqualify a decisionmaker, we require a “substantial countervailing

reason” to conclude he or she was “actually biased with respect to factual issues

                                         -8-
being adjudicated.” Hicks v. City of Watonga, 942 F.2d 737, 746-47 (10th Cir.

1991) (emphasis added) (quotation omitted). In the circumstances of this case,

plaintiffs’ evidence does not meet this standard.

      How best to cut the District’s budget is a decision committed to the

informed judgment of the Board and one we are most reluctant to second guess.

Board members’ previous positions regarding plaintiffs’ job performance does not

automatically disqualify them from participating in the Board’s decision on this

fiscal issue. See Hortonville, 426 U.S. at 493 (“Nor is a decisionmaker

disqualified simply because he has taken a position, even in public, on a policy

issue related to the dispute, in the absence of a showing that he is not capable of

judging a particular controversy fairly on the basis of its own circumstances.”

(quotation omitted)). Further, given the urgent financial concerns facing the

Board the district court correctly concluded the circumstances regarding campaign

statements presented in Staton v. Mayes, 552 F.2d 908, 913-14 (10th Cir. 1977),

and McClure v. Independent School District No. 16, 228 F.3d 1205, 1215 (10th

Cir. 2000), are not sufficiently analogous to control.

      Finally, the Supreme Court has indicated where a board makes a decision in

a district’s best interest, federal due process is not implicated, even if the decision

may also serve board members’ interests in other ways. See Hortonville, 426 U.S.

at 492 n.4 (stating, in response to the argument that Board members satisfied an

anti-union agenda by dismissing striking teachers, “[W]e do not agree that federal

                                          -9-
due process prevented the Board from pursuing a course of action that was within

its explicit statutory authority and which, in its judgment, would serve the best

interests of the school system. That the result may also have been desirable for

other reasons is irrelevant to the due process issue on which the Wisconsin

Supreme Court’s decision turned, and if the other reasons are invalid under state

law, respondents can resort to whatever forum the State provides.”).

      B.     Confrontation

      Plaintiffs received their pre-hearing notice from the Board’s attorney. They

complain that because the attorney issued the notice, the hearing did not afford

them an ability to confront anyone who recommended the elimination of their

positions. “Because the Recommendation was not issued by a particular Board

member or Superintendent but rather by [the Board’s attorney], first representing

the Board then some unknown entity, Plaintiffs were deprived of a fair hearing.”

Aplt. Opening Br. at 25.

      The Board did not violate due process by directing its attorney to notify

plaintiffs their positions were being considered for elimination. Due process

requires notice, but not necessarily notice from someone the employee can

subsequently confront and cross-examine at a due-process hearing. Plaintiffs had

the opportunity to confront and cross-examine the witnesses who testified at the




                                         -10-
hearing and the opportunity to call witnesses on their behalf. Without anything

beyond bare assertions of improprieties, their confrontation argument fails. 5

      C.     Sham Hearing

      Finally, plaintiffs allege the cumulative effect of the evidence compels us

to conclude the hearing was a sham because, in actuality, the District was not

facing a financial crisis. They contend “the financial justifications were spotty at

best and ridiculous at worst.” Id. Their analysis, however, relies heavily on

hindsight. The District’s financial situation had been an issue of concern to the

Board since the late fall of 2008. At the hearing, Jones stated the District might

have insufficient carryover funds for the 2009-2010 school year. Nothing of

record even remotely suggests Jones harbored a bias against plaintiffs or

deliberately manipulated his figures to support a nonexistent financial crisis; in

fact, plaintiffs’ own witness evinced a belief in Jones’ calculations. At most,

Jones’ analysis turned out to be wrong, but “errors, by themselves, do not show


5
       Plaintiffs’ somewhat enigmatic argument confounds the issue. The Board
(not the attorney) actually heard the evidence and rendered its decision. Plaintiffs
did not request to voir dire the board members for bias, but merely argued that
some board members might harbor a bias. See Aplee. Supp. App. at 236
(“Finally, we object to the fact that is our position members of the board at least
three (3) or four (4) members of the board are biased toward Ms. Tennison and
Ms. James. This has been part of and this is part of our case today so I am saying
this objection for the record.”). If the hearing was not as fulsome as they might
have desired it comes from their lack of precision in identifying the relief they
were seeking – an opportunity to discover disqualifying bias on the part of any
board member. Since a specific request was not made and denied we are left to
speculate as to what a proper inquiry might have produced.

                                         -11-
that the hearings were shams.” Salas v. Wis. Dep’t of Corr., 493 F.3d 913, 928

(7th Cir. 2007).

      Plaintiffs briefly list other alleged indicia of a sham hearing. They note the

hearing officer was paid by the Board’s law firm. But that is not a due-process

violation. See Riggins, 572 F.3d at 1114 (“Nor does procedural due process

require access to professional hearing officers or hearing officers not employed

by the governmental body or agency taking the adverse action.”). They point to a

telephone conversation between the Board’s attorney and the financial consultant,

but do not explain why such evidence would be admissible or what it might

reveal. They reiterate their equivocal evidence of bias and complain that no

Superintendent made any recommendation to the Board. 6 As we have explained,

however, these issues do not create a genuine issue of material fact regarding a

denial of due process.

II.   Free Speech

      Plaintiffs next quarrel with the district court’s resolution of their retaliation

claims, i.e., they were fired for exercising their First Amendment rights. We

apply the five-step framework established by the Supreme Court in Garcetti v.


6
      During the period from December 2008 to February 2009, the District had a
Superintendent and two Interim Superintendents. Cottrell was suspended in
December 2008, and Charles Biggs was appointed as Interim Superintendent. At
the February 2, 2009, meeting, the Board accepted Cottrell’s resignation. Shortly
thereafter, on February 9, the Board employed Phyllis Tarrant as Interim
Superintendent for the remainder of the school year.

                                         -12-
Ceballos, 547 U.S. 410 (2006), and Pickering v. Board of Education, 391 U.S.

563 (1968). See Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741, 745

(10th Cir. 2010).

      In their summary judgment brief, plaintiffs asserted their speech was

(1) “actions relating to the grand jury petition filed against the Prue School Board

members”; (2) their involvement in a criminal investigation of Meadows’ son at

some unspecified time before the hearing; and (3) “other happenings of [sic]

related to the Prue School District.” Aplt. App. at 96. The district court held,

“Plaintiffs provide no evidence of what these statements were, when they were

made, to whom, or how they were relayed to defendants. . . . These vague and

conclusory allegations are insufficient.” Id. at 166.

      Plaintiffs tell us they “have produced sufficient evidence of statements and

actions that they engaged in as citizens relating to matters of public concern.”

Aplt. Opening Br. at 28. But the record contains only general allegations failing

to identify with particularity statements or actions sufficient to satisfy their

burden to identify the specific instances of speech underlying their claims. See

Craven v. Univ. of Colo. Hosp. Auth., 260 F.3d 1218, 1226 (10th Cir. 2001)

(discussing inadequate identification of speech in appellate argument). They did

not establish the occurrence and/or the content of the speech sufficiently for the

district court to even begin the Garcetti/Pickering analysis.




                                          -13-
      AFFIRMED. 7


                                                    Entered for the Court



                                                    Terrence L. O’Brien
                                                    Circuit Judge




7
      Because the district court declared certain materials stricken and plaintiffs
have not appealed that ruling, we have not considered those materials in making
our decision. Defendants’ motion to strike is DENIED.

                                        -14-
