                                                              FILED
                                                  United States Court of Appeals
                                PUBLISH                   Tenth Circuit

               UNITED STATES COURT OF APPEALS January 28, 2015
                                                      Elisabeth A. Shumaker
                             TENTH CIRCUIT                Clerk of Court



DONNA MEYERS,


      Plaintiff–Appellant,

      v.                                     No. 13-6302


EASTERN OKLAHOMA COUNTY
TECHNOLOGY CENTER, a
political subdivision of the State of
Oklahoma; TERRY UNDERWOOD,
Superintendent of EOC in his
official and individual capacity;
ERIK REYNOLDS, Assistant
Superintendent of EOC in his
official and individual capacity,

       Defendants –Appellees.


LARRY STEPHENS; RODNEY
ALBEE; DENNIS DELANO; GARY
HOWARD; AND MIKE O’BOYLE,

            Defendants.



             Appeal from the United States District Court
                for the Western District of Oklahoma
                     (D.C. No. 5:10-CV-01058-F)
Guinise Marie Marshall, Marshall Law Office, Oklahoma City, Oklahoma,
for Plaintiff-Appellant.

Jerry A. Richardson, Rosenstein, Fist & Ringold, Tulsa, Oklahoma (Karen
L. Long, Rosenstein, Fist & Ringold, Tulsa, Oklahoma, with him on the
briefs), for Defendants-Appellees.




Before TYMKOVICH, GORSUCH, and BACHARACH, Circuit Judges.



BACHARACH, Circuit Judge.


     This case grew out of Ms. Donna Meyers’s employment at the

Eastern Oklahoma County Technology Center. During her employment,

Ms. Meyers had a disagreement with a subordinate who taught at the

school. When the school superintendent learned of the situation, he

instructed Ms. Meyers to consult another supervisor before taking any

action against the subordinate. Four days later, Ms. Meyers violated this

instruction by taking away two of the subordinate’s classes. The school

superintendent viewed this violation as insubordination and recommended

the firing of Ms. Meyers. She sued the school and the superintendent,

alleging retaliation for engaging in protected speech and deprivation of

procedural due process. The district court granted summary judgment to

the defendants, and Ms. Meyers appealed.

     To decide her appeal, we ask two questions:


                                     2
      1.    Can a reasonable trier of fact conclude that school
            administrators retaliated against the plaintiff when she directly
            disobeyed instructions?

      2.    Can a reasonable trier of fact infer denial of due process, in the
            absence of a liberty or property interest, based on inadmissible
            hearsay?

We conclude that no reasonable trier of fact could find retaliation or denial

of due process. As a result, we affirm.

I.    Standard of Review

      “We review the district court’s grant of summary judgment de novo,

employing the same legal standard applicable in the district court.”

Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1311 (10th Cir. 2009).

Summary judgment is appropriate only if there is no genuine dispute of

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

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

II.   The Termination of Ms. Meyers

      To analyze Ms. Meyers’s claims, we must understand what she did

and why. We derive our understanding from the summary judgment record,

viewed in the light most favorable to Ms. Meyers. See Finstuen v.

Crutcher, 496 F.3d 1139, 1144 (10th Cir. 2007).

      A.    The Tuberculosis Testing

      The Eastern Oklahoma County Technology Center is a public career

and technology education center, which employed Ms. Meyers as the adult

education coordinator in the EMT program. She supervised Ms. Lisa

                                      3
Gonzales-Palmer, an instructor at the school who also worked for Air Evac,

a company providing air ambulance services.

      Students had to submit proof of tuberculosis testing before taking

EMT classes. About six students submitted documentation of their tests,

but the school lost the documents. Rather than requiring the students to

assume the cost of obtaining a new test, Ms. Gonzales-Palmer agreed to

retest the students.

      Ms. Gonzales-Palmer began to do so, removing a vial of purified

protein derivative (PPD) from her Air Evac jumpsuit and telling Ms.

Meyers that she was going to perform tuberculosis skin tests on the

students. Ms. Meyers told Ms. Gonzales-Palmer not to perform the tests,

believing she was unqualified and suspecting she had stolen the PPD from

Air Evac.

      Ms. Meyers later found “PPD Administration/Reporting” forms in six

students’ education records. These forms showed that Ms. Gonzales-

Palmer had administered the tests in disregard of Ms. Meyers’s

instructions.

      B.    Unauthorized Termination of Ms. Gonzales-Palmer

      Seeking guidance about how to handle Ms. Gonzales-Palmer’s

actions, Ms. Meyers called Mr. Ron Feller, an Air Evac manager who had

previously worked for the Oklahoma State Department of Health.

Ms. Meyers did not mention Ms. Gonzales-Palmer, but Mr. Feller inferred

                                     4
from their discussion that Ms. Gonzales-Palmer was the person who had

administered the tests. Mr. Feller told Ms. Meyers to speak with Ms. Judy

Dyke, who was Ms. Gonzales-Palmer’s manager at Air Evac and had

recently said that a vial of PPD was missing. Ms. Dyke contacted

Ms. Meyers and asked her to cooperate in an investigation by Air Evac.

      Ms. Meyers met with Ms. Gonzales-Palmer to discuss the testing.

Ms. Gonzales-Palmer explained that she had performed the tests at the

direction of three Technology Center instructors. Dissatisfied with this

explanation, Ms. Meyers terminated Ms. Gonzales-Palmer’s employment.

      C.     Warning to Ms. Meyers

      Ms. Gonzales-Palmer informed the school’s administration of her

termination. Shortly thereafter, the school superintendent met with

Ms. Meyers, telling her that she lacked authority to terminate employees

and that Ms. Gonzales-Palmer would be reinstated. The superintendent

warned Ms. Meyers that she was not to retaliate against Ms. Gonzales-

Palmer or talk to anyone about Ms. Gonzales-Palmer’s testing of the

students. A short time later, Ms. Meyers informed Ms. Dyke of the

termination of Ms. Gonzales-Palmer and the lot number of the PPD used in

the tests.

      The superintendent learned of Ms. Meyers’s communication with Air

Evac and was not pleased. He admonished Ms. Meyers, telling her that she

could be fired if she retaliated against Ms. Gonzales-Palmer, continued to

                                     5
take unauthorized action, or failed to comply with other directives. The

superintendent added that “[t]o the extent [Ms. Meyers] believe[d] that the

hiring, termination (or other adverse action) of an employee [was] in the

best interest of [the Technology Center] [she] should promptly meet with

Mr. O’Boyle.” Applt. App. Vol. 1, pt. 1 at 135.

     Four days after the meeting, Ms. Meyers submitted an “Amendment

to Course Authorization Request Form” for two courses in the EMT

program without receiving approval from Mr. O’Boyle. See Applt. App.

Vol. 1, pt. 1 at 143 (stating that Mr. O’Boyle discovered the change the

day after it was made). In this form, Ms. Meyers removed Ms. Gonzales-

Palmer as co-instructor for the two courses. Mr. O’Boyle discovered the

amendment and reported to the superintendent that Ms. Meyers had taken

action against Ms. Gonzales-Palmer.

     D.    Suspension of Ms. Meyers

     Upon learning of this incident, the superintendent arranged a meeting

with Mr. O’Boyle and Ms. Meyers. At the end of the meeting, the

superintendent notified Ms. Meyers that she was suspended with pay. The

next day, the superintendent learned that Ms. Meyers had failed to renew

the school’s certification as an EMT training site.

     The superintendent advised Ms. Meyers that he was recommending

her termination. The same day, Ms. Meyers made a written complaint to

the Oklahoma State Department of Health about the tuberculosis testing.

                                      6
Two days later, the superintendent sent Ms. Meyers a letter, saying he had

recommended termination because she

              provided Air Evac with confidential employee records and
               emailed confidential records to her home computer,

              failed to communicate with supervisors regarding contact with
               Air Evac despite warnings about her duty to communicate with
               supervisors,

              failed to respond candidly to questions about Ms. Gonzales-
               Palmer,

              retaliated against Ms. Gonzales-Palmer after being told not to
               retaliate, and

              allowed expiration of the Technology Center’s certification as
               a training site.

      E.       Ms. Meyers’s Hearing and Termination

      The superintendent told Ms. Meyers that he would allow her to

appeal his decision, though she had no right to an appeal. She took

advantage of this opportunity and appeared with counsel at a hearing

before the school’s board. The board voted to terminate Ms. Meyers,

finding that

              Ms. Meyers had repeatedly failed to communicate with
               supervisors despite warnings to communicate,

              Ms. Meyers had not been candid in her meeting with the
               superintendent,

              Ms. Meyers had retaliated toward another employee and
               violated the superintendent’s instructions, and



                                        7
           the superintendent’s firing had been based on Ms. Meyers’s
            consistent failure to report important EMT matters.

With this action by the board, Ms. Meyers lost her job.

III.   Section 1983 Claims and the Ruling in District Court

       Ms. Meyers sued under § 1983, alleging

           denial of the right to free speech because she was suspended
            and terminated for reporting the illegal administration of
            tuberculosis testing, and

           deprivation of procedural due process based on bias of the
            board in her termination hearing.

The district court granted summary judgment to the school and the

superintendent.

IV.    Retaliation Claims Involving Violation of the First Amendment

       Generally, public employees cannot be terminated for engaging in

protected speech. Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); Dill v.

City of Edmond, Okla., 155 F.3d 1193, 1201 (10th Cir. 1998). Ms. Meyers

claims retaliation for protected speech involving discussion of the tests

with the Oklahoma State Board of Health and Air Evac. The district court

acknowledged that these discussions involved protected speech, but

concluded they did not cause Ms. Meyers’s termination. We agree that the

termination did not result from protected speech.




                                      8
     A.       The Five-Pronged Test

     The claims trigger the five-pronged Garcetti-Pickering test. Trant v.

Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014). Under this test, Ms.

Meyers can prevail only if

     1.       her speech was not made pursuant to official job duties,

     2.       her speech involved a matter of public concern,

     3.       her free speech interests were not outweighed by the
              defendants’ interest in promoting workplace efficiency,

     4.       the speech was a motivating factor in the suspension and
              termination, and

     5.       the defendants would not have reached the same employment
              decision without the protected speech.
Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202 (10th

Cir. 2007).

     B.       The District Court’s Reasoning

     The district court held that Ms. Meyers had satisfied the first three

prongs, establishing constitutional protection as a matter of law. See

Connick v. Myers¸ 461 U.S. 138, 148 n.7 (1983) (explaining that the

existence of protected speech is a question of law). For the sake of

argument, we assume that the district court was correct. See Trant v.

Oklahoma, 754 F.3d 1158, 1166 (10th Cir. 2014) (assuming satisfaction of

the first four prongs when the defendant was entitled to summary judgment

based on the fifth prong). The court held that


                                       9
     ●     the claim failed on the fourth prong with respect to
           communications with the Board of Health, and

     ●     the claim failed on the fifth prong with respect to
           communications with Air Evac.

     C.    The Burden of Proof

     Ms. Meyers bears the burden of proof on the fourth prong.

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287

(1977). The fifth prong involves an affirmative defense, and the

defendants bear the burden of proof. Trant v. Oklahoma, 754 F.3d 1158,

1167 (10th Cir. 2014).

     D.    Communication with the Oklahoma State Board of Health

     The district court concluded that Ms. Meyers had failed to create a

material factual dispute on retaliation for her communications with the

Oklahoma State Board of Health. On this claim, the court determined that

the communication was not a motivating factor for the termination (fourth

prong) because the school superintendent had not known about Ms.

Meyers’s communication to the Board of Health when he recommended

termination. Because the superintendent could not have relied on

something he did not know about, the court concluded that Ms. Meyers’s

conversation with the Board of Health was not a motivating factor in the

suspension or termination.

     Ms. Meyers did not address this issue in her briefs. Although she did

so in oral argument, we need not consider “[a]n argument made for the first

                                    10
time at oral argument.” Corder v. Lewis Palmer Sch. Dist. No. 38¸ 566

F.3d 1219, 1235 n.8 (10th Cir. 2009). In the absence of briefing, we

decline to consider Ms. Meyers’s argument on the fourth prong.

      E.    Communication with Air Evac

      The district court relied on the fifth prong in rejecting Ms. Meyers’s

claim involving her conversation with Air Evac personnel.

      A district court’s grant of summary judgment based on the fifth

prong is appropriate only if “‘any reasonable jury would [have found] that

[the plaintiff] would have been terminated even absent any desire on the

Defendants’ part to punish [her] in retaliation for his allegedly protected

speech.’” Trant v. Oklahoma, 754 F.3d 1158, 1167 (10th Cir. 2014)

(quoting Anemone v. Metro. Transp. Auth., 629 F.3d 97, 117 (2d Cir.

2011)). As a result, summary judgment was appropriate only if any

reasonable jury would have found that the superintendent would have

recommended the firing of Ms. Meyers even without the protected speech.

Under this standard, the defendants are entitled to judgment, for they have

proven that the superintendent would have recommended the firing even if

Ms. Meyers had not continued her discussions with Air Evac.

      After the Technology Center rehired Ms. Gonzales-Palmer, the

superintendent cautioned Ms. Meyers that any retaliation against Ms.

Gonzales-Palmer could result in Ms. Meyers’s termination. In the written



                                     11
admonishment, the superintendent told Ms. Meyers that she was to consult

Mr. O’Boyle before taking any adverse action against an employee.

      Only four days after receiving this admonishment, Ms. Meyers

admittedly took further action against Ms. Gonzales-Palmer without

contacting Mr. O’Boyle. Ms. Meyers contacted the Oklahoma Health

Board to have Ms. Gonzales-Palmer’s name removed as an instructor for

two courses. When the board voted to terminate Ms. Meyers, it cited this

retaliation against Ms. Gonzales-Palmer as a direct violation of the

superintendent’s instructions.

      The district court concluded that regardless of Ms. Meyers’s

continued discussions with Air Evac, the superintendent would have

recommended the firing based on insubordination. We agree.

      Ms. Meyers argues that the district court erred because

      ●     she did not act with retaliatory intent when she removed
            Ms. Gonzales-Palmer as an approved instructor, and

      ●     her removal of Ms. Gonzales-Palmer constituted protected
            speech because of its relationship with protected speech.

We reject both arguments.

      We reject the first argument. Ms. Meyers asserts that she had Ms.

Gonzales-Palmer removed as an instructor for the classes not to retaliate,

but to “‘protect the welfare first of the students and next of the facility.’”

Appellant’s Opening Br. at 18 (quoting Applt. App. Vol. 2, pt. 1 at 90).



                                      12
With these intentions, Ms. Meyers denies insubordination. But, the fifth

prong relates to the superintendent’s intent, not Ms. Meyers’s.

     When Ms. Meyers took that action, the superintendent would

undoubtedly have recommended the firing based on insubordination even if

Ms. Meyers had good intentions in taking away Ms. Gonzales-Palmer’s two

classes. 1 See Trant v. Oklahoma, 754 F.3d 1158, 1169 (10th Cir. 2014)

(holding that the defendants were entitled to summary judgment on a

retaliation claim because any impermissible motive would have been

minimal in light of the employee’s “inappropriate comments,

insubordination, and other serious reasons for termination”); accord

Graber v. Clarke, 763 F.3d 888, 892, 899-900 (7th Cir. 2014) (holding that

no causal link existed between an employee’s protected speech and an

adverse employment action because of the employee’s insubordinate

manner of speaking to a supervisory employee). The superintendent told

Ms. Meyers to consult Mr. O’Boyle before taking any action against an

employee. Only four days later, Ms. Meyers removed Ms. Gonzales-

Palmer’s name as an instructor on two courses without contacting Mr.

O’Boyle. From the superintendent’s perspective, Ms. Meyers’s

insubordination was quick and unequivocal.

1
     Ms. Meyers does not question an employer’s right to terminate an
employee for insubordination. Indeed, Ms. Meyers states that she
terminated Ms. Gonzales-Palmer’s employment based in part on
insubordination. Appellant’s Opening Br. at 12 ¶ 6.

                                     13
     We also reject Ms. Meyers’s second argument, concluding that her

conduct does not trigger constitutional protection simply because the

situation had grown out of the exercise of protected speech.

     Ms. Meyers suggests that the situation arose only because she had

engaged in protected speech with Air Evac. For the sake of argument, we

assume Ms. Meyers is correct. If Ms. Meyers had not spoken to Air Evac,

the superintendent might never have prohibited Ms. Meyers from taking

action against Ms. Gonzales-Palmer. But, that is the situation that existed.

     Facing that situation, Ms. Meyers could have complied without any

risk of compromising her right to free speech. Instead, she disobeyed the

superintendent’s instruction. Her prior exercise of free speech did not

handcuff the school in dealing with that act of disobedience. See Mt.

Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 286 (1977)

(stating that an employer can decline to renew an employee’s contract

based on his performance even if his exercise of protected conduct had

made the employer “more certain of the correctness of its decision”).

     That act of disobedience was not constitutionally protected, for it

involved conduct rather than speech. See Rumsfeld v. Forum for Academic

& Inst’l Rights, Inc., 547 U.S. 47, 65 (2006) (“[W]e have extended First

Amendment protection only to conduct that is inherently expressive.”).

This action would have been constitutionally protected only if Ms. Meyers

was intending to convey a particularized message and the Oklahoma State

                                     14
Department of Health was likely to understand that message. Texas v.

Johnson, 491 U.S. 397, 404 (1989). No fact-finder could have reasonably

expected the Department of Health to understand a particularized message

when told to remove Ms. Gonzales-Palmer’s name as an instructor. Thus,

the constitution would not have prevented the superintendent from

recommending Ms. Meyers’s firing based on her conduct with the

Department of Health.

     In these circumstances, we reject Ms. Meyers’s two arguments. The

district court correctly rejected the claim because the superintendent would

have recommended the firing based on Ms. Meyers’s insubordination.

V.   Claims Involving Deprivation of Procedural Due Process

     Ms. Meyers also claims that she was not afforded procedural due

process because the board hearing was inadequate. This claim fails as a

matter of law.

     Courts engage in a two-step inquiry to determine if an individual was

denied procedural due process:

     1.       Did the individual have a protected interest that would trigger
              the right to due process?

     2.       If the individual had a protected interest, was the process
              adequate?
Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1209 (10th

Cir. 2007).



                                       15
      Ms. Meyers has not alleged a protected interest that would trigger the

constitutional right to due process (the first prong). The district court

noted this failure, and Ms. Meyers failed to address the issue in her

appellate briefs. 2 We cannot assess whether the hearing was sufficient

without identifying the protected interest.

      Even if Ms. Meyers was entitled to a hearing, the claim would fail.

She relies solely on a combination of out-of-court statements by Mr.

O’Boyle and the superintendent:

      ●     Mr. O’Boyle told her (the first out-of-court statement) that

      ●     the superintendent had admitted rigging the hearing (the second
            out-of-court statement).




2
      In her opening brief on this issue, Ms. Meyers misquoted a section of
the district court’s opinion. She quoted: “‘Although defendants have
addressed both prongs of the two-step inquiry in their motion, Meyers
argues, in her briefing, that she was not afforded a meaningful opportunity
to be heard.’” Appellant’s Opening Br. at 19. In fact, the district court
said: “Although defendants have addressed both prongs of the two-step
inquiry in their motion, Meyers only argues, in her briefing, that she was
not afforded a meaningful opportunity to be heard.” Applt. App. Vol. 3 at
50 (emphasis added). The district court added: “Even if Meyers were able
to satisfy the first prong of the two-step inquiry, which she has not
addressed, the court finds that Meyers has failed to raise a genuine issue of
material fact to avoid summary judgment in regard to the second step of
the two-step inquiry.” Id.

                                      16
What the superintendent said is arguably an admission of a party opponent.

See Fed. R. Evid. 801(d)(2). But what Mr. O’Boyle said to Ms. Meyers is

not. 3

         Ms. Meyers asserts that Mr. O’Boyle’s remark falls under the state of

mind exception to the hearsay rule. See Fed. R. Evid. 803(3). But, this

exception would cover Mr. O’Boyle’s state of mind, not the

superintendent’s. See United States v. Joe, 8 F.3d 1488, 1493 n.4 (10th

Cir. 1993) (“An out-of-court statement relating a third party’s state of

mind falls outside the scope of the hearsay exception because such a

statement necessarily is one of memory or belief.”).

         Mr. O’Boyle’s state of mind is irrelevant: The rigging was allegedly

done by the superintendent, not Mr. O’Boyle. Thus, the state of mind

exception would not support the admissibility of Mr. O’Boyle’s alleged

remark. Because Mr. O’Boyle’s alleged remark is not admissible, it could

not be considered as evidence of bias by the superintendent or the board.

See Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1555 (10th Cir. 1995)

(holding “that [Fed. R. Civ. P.] 56 precludes the use of inadmissible

hearsay testimony in depositions submitted in support of, or in opposition

to, summary judgment”).

3
     When Mr. O’Boyle allegedly made the statement, he was no longer
an employee of the school. See Appellant’s Opening Br. at 14 ¶ 15. Thus,
Mr. O’Boyle’s statement could not constitute an admission of an opponent.
See Fed. R. Evid. 801(d)(2)(D).

                                       17
VI.   Conclusion

      We affirm the district court’s award of summary judgment. Viewing

the evidence favorably to Ms. Meyers, the fact-finder could not reasonably

infer retaliation for protected speech or deprivation of procedural due

process.




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