                                                             FILED
                                                  United States Court of Appeals
                                                          Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                               September 12, 2007
                            FO R TH E TENTH CIRCUIT            Elisabeth A. Shumaker
                                                                   Clerk of Court



    SON YA VIGIL; LOREN V IGIL,

                Plaintiffs-Appellants,

    v.                                                 No. 06-2309
                                             (D.C. No. CIV-05-1142 W J/AC T)
    SO U TH VA LLEY A CA D EM Y ;                       (D . N.M .)
    ALAN M ARKS, in his official and
    individual capacity; DA NIEL
    DOM INGUEZ, in his official and
    individual capacity; K A TA RIN A
    SA NDOVAL, in her official and
    individual capacity,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, M U RPH Y and HO LM ES, Circuit Judges.


         Sonya Vigil worked as the office manager for South Valley Academy

(SV A), a school located in New M exico. Her husband, Loren Vigil, served on




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
SV A’s governing council. Both M r. and M s. Vigil claim they were forced from

their jobs in violation of state and federal law , and they therefore brought this

action against SVA and individual defendants A lan M arks, Katarina Sandoval,

and Daniel Dominguez. The district court, however, granted SVA’s motion for

summary judgment and the individual defendants’ request for qualified immunity.

W e have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and affirm.

                                           I

      According to the complaint, SV A is organized as a municipal corporation.

In 2001, M s. Vigil began working for SV A, but complained after completing her

first year that she had not been evaluated or given a raise. She also expressed

concern about the school’s security measures and what she perceived to be the

administration’s preferential treatment of certain staff members. Later, M s. Vigil

lodged additional complaints that faculty members were working without proper

certifications and that she had been denied the opportunity to enroll in further

schooling as promised at the time of her hire. The school’s head teacher, Alan

M arks, told M s. Vigil that a budget shortfall was to blame for her not receiving a

raise, although he later said it was because she lacked certification. M r. M arks

also agreed to hire a security guard, but then delegated the responsibility to a

janitor who had no experience with security issues. By 2004, M s. Vigil had been

assaulted by a student and confronted by another wielding a knife; she also

learned that a special education teacher w as hired during the budget deficit.

                                          -2-
      Dissatisfied with the manner in which her complaints had been handled,

M s. Vigil’s relationship w ith M r. M arks and SVA’s assistant head teacher,

Katarina Sandoval, deteriorated. M s. Vigil requested a leave of absence for

medical reasons, but was told that no such option existed. Rather, M r. M arks

informed her that if she left, she would be paid until February 15, 2004, as

severance. M s. Vigil left despite this warning and never returned to work.

Although the parties attempted to mediate the terms of her departure, those efforts

failed. Consequently, in M arch of the same year, the president of the governing

council, Daniel Dominguez, asked M r. Vigil to resign “due to the potential legal

implications that may be brought by [M s. Vigil].” Aplt. App. at 15. M r. Vigil

refused to voluntarily resign and so the council’s members voted him out.

      The Vigils then brought their grievance to federal court, alleging numerous

state and federal violations against SV A and the individual defendants. After the

district court dismissed several of the V igils’ claims, the court granted summary

judgment based on qualified immunity on the Vigils’ remaining claims for

freedom of association and M s. Vigil’s claims for freedom of speech, procedural

due process, and equal protection. The district court’s grant of summary

judgment based on qualified immunity is now the subject of this appeal. 1




1
      The district court also granted summary judgment on various contract
claims, but the Vigils do not appeal that ruling.

                                         -3-
                                          II

                              A. Q ualified Immunity

      “Qualified immunity generally shields from liability for civil damages

government officials performing discretionary functions insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Gomes v. Wood, 451 F.3d 1122, 1134

(10th Cir.) (internal quotation marks and alteration omitted), cert. denied,

127 S. Ct. 676 (2006). “Because of the underlying purposes of qualified

immunity, we review summary judgment orders deciding qualified immunity

questions differently from other summary judgment decisions.” Ward v.

Anderson, – F.3d – , 2007 W L 2110901, at *3 (10th Cir. July 24, 2007) (quotation

omitted). W hen a defendant raises qualified immunity as an affirmative defense

on a motion for summary judgment, “the plaintiff bears the heavy two-part burden

of demonstrating that (1) the defendant violated a constitutional right and (2) the

constitutional right was clearly established at the time of the alleged conduct.”

Reeves v. Churchich, 484 F.3d 1244, 1250 (10th Cir. 2007). If a plaintiff meets

this burden, the defendant must then satisfy the usual summary judgment standard

of showing that no material facts are in dispute and that he or she is entitled to

judgment as a matter of law. Olsen v. Layton Hills M all, 312 F.3d 1304, 1312

(10th Cir. 2002). W e review the grant of summary judgment based on qualified




                                         -4-
immunity de novo, “considering all evidence in the light most favorable to the

non-moving party.” Trask v. Franco, 446 F.3d 1036, 1043 (10th Cir. 2006).

      In this case, M s. Vigil alleged that she was terminated. The district court,

however, found that she resigned. The court then relied on this finding

throughout its qualified immunity analysis to determine that no constitutional

violations had occurred. Yet, our precedent required the court to accept as true

her allegation that she was terminated. See Lawrence v. Reed, 406 F.3d 1224,

1230 (10th Cir. 2005) (holding that qualified immunity analysis begins with the

court asking “whether the plaintiff’s allegations, if true, establish a constitutional

violation” (internal quotation marks omitted)). By finding that M s. Vigil resigned

and incorporating that finding into its qualified immunity analysis, the district

court blended its qualified immunity analysis with a merits analysis and

improperly undercut M s. Vigil’s claims. Instead, the court should have accepted

as true M s. Vigil’s allegation that she w as terminated and determined whether,

based on that or any other allegation, she established a constitutional violation.

Therefore, given our de novo standard of review , and because “[w]e are free to

affirm a district court decision on any grounds for which there is a record

sufficient to permit conclusions of law,” Smith v. Plati, 258 F.3d 1167, 1174

(10th Cir. 2001), we accept M s. Vigil’s allegation that she was terminated and

proceed to consider w hether there is any merit to the contentions now before us.




                                          -5-
      1. Freedom of Association

      The First Amendment implicitly protects the freedom to expressive

association. Grace United M ethodist Church v. City of Cheyenne, 451 F.3d 643,

658 (10th Cir. 2006). Although there has been some debate as to its source, the

right to familial association also is constitutionally protected. See Trujillo v. Bd.

of County Com m’rs, 768 F.2d 1186, 1188-89, 1190 n.7 (10th Cir. 1985). A

plaintiff alleging a violation of the right to expressive association may support his

or her claim by demonstrating, inter alia, some form of government action to

impose penalties for the expression of political views, see Roberts v. United

States Jaycees, 468 U.S. 609, 622 (1984), while a plaintiff claiming a violation of

the right to familial association must show that the defendant had the specific

intent to interfere with the familial relationship, Trujillo, 768 F.2d at 1190.

      Here, the Vigils maintain that their rights to expressive and familial

association were violated when the individual defendants punished them for their

political views and their marriage to one another. They fail to present, however,

any specific evidence to support these allegations. W ith respect to M s. Vigil, the

record supports neither her argument that she was fired for expressing concerns

about proper faculty certification, inequitable treatment, and safety issues, nor her

argument that she w as fired for sharing views common with her husband. Rather,

the record suggests that she was fired because she took an unauthorized leave of

absence. Indeed, M r. M arks warned M s. Vigil prior to her departure that she

                                          -6-
would be compensated “until February 15, 2004 as severance pay.” Aplt. App. at

117. This warning signaled to M s. Vigil that her unauthorized leave of absence

would result in termination because she later acknowledged that if she were not

paid while on medical leave, it could “only be taken as a statement that I have

been fired.” Id. at 128. M oreover, she specifically disputed the implication of

M r. M arks’ statement, arguing that “[p]ay received while on medical leave cannot

be considered severance pay.” Id. And despite M s. Vigil’s growing frustration

and repeated threats of resignation, it was not until after she took an unauthorized

leave of absence that SV A refused to allow her back.

      As for M r. Vigil, the evidence concerning his removal shows not that he

was punished for his wife’s actions, but because there were “obvious conflict of

interest issues involved with the actions [she was] taking.” Id. at 136. Both

M r. M arks and M s. Sandoval were governing council members and both w ere

enmeshed in a dispute that now names them as defendants. M ediation had proven

unsuccessful, M s. Vigil had threatened legal action, and the council was caught in

the unenviable position of forcing M r. Vigil to resign or allowing him the choice

to either engage in or abstain from proceedings necessarily implicating his wife.

Given these circumstances, the fact that the council forced him to resign does not

indicate an intent to punish him for any political views he may have expressed.

N or does it evidence a specific intent to interfere with his marriage. It shows

only that the council sought to avoid the conflict of interest that clearly existed.

                                          -7-
Accordingly, because M r. and M s. Vigil fail to show a violation of their rights to

expressive or familial association, they cannot satisfy the first prong necessary to

overcome a qualified immunity defense, and we therefore need not consider the

second. See Eaton v. M eneley, 379 F.3d 949, 954 (10th Cir. 2004) (“But if a

plaintiff fails to demonstrate that a defendant’s conduct violated the law , the court

need not determine w hether the law was clearly established.”).

      2. Freedom of Speech

      Turning to M s. Vigil’s individual claims, she maintains that she was

terminated in retaliation for speaking out against inequitable staff treatment,

unethical employment practices, and inadequate security measures at SVA.

“[T]he First Amendment bars retaliation for protected speech.” Crawford-El v.

Britton, 523 U.S. 574, 592 (1998). In Garcetti v. Ceballos, 126 S. Ct. 1951

(2006), the Supreme Court recently altered the traditional free speech retaliation

claim analysis set forth in Pickering v. Board of Education, 391 U.S. 563 (1968).

See Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202

(10th Cir. 2007) (“it is apparent that the ‘Pickering’ analysis of freedom of

speech retaliation claims is a five step inquiry which we now refer to as the

‘Garcetti/Pickering’ analysis”); see also Casey v. W. Las Vegas Indep. Sch. Dist.,

473 F.3d 1323, 1325 (10th Cir. 2007) (noting that Garcetti “profoundly alters

how courts review First Amendment retaliation claims”). W e now begin by

asking whether the employee spoke “pursuant to [her] official duties.” Garcetti,

                                          -8-
126 S. Ct. at 1960. Public employees who speak pursuant to their official duties

are afforded “no constitutional protection because the restriction on speech simply

reflects the exercise of employer control over what the employer itself has

comm issioned or created.” Brammer-Hoelter, 492 F.3d at 1202 (internal

quotation marks omitted). Next, if the employee has not spoken pursuant to her

official duties, but rather as a citizen, we must determine whether the speech

relates to a matter of public concern. See G reen v. Bd. of County Com m’rs,

472 F.3d 794, 798 (10th Cir. 2007). Speech that is of no public concern is not

protected and the inquiry ends. However, once it is determined that the employee

has spoken as a citizen on a matter of public concern, we ask “whether the

employee’s interest in commenting on the issue outweighs the interest of the state

as employer.” Casey, 473 F.3d at 1327 (internal quotation marks omitted). If the

employee’s interest is greater than that of the employer, she must then show that

the speech was a motivating factor behind the adverse employment decision.

Belcher v. City of M cAlester, 324 F.3d 1203, 1207 (10th Cir. 2003) (quotation

omitted). Finally, if an employee makes this showing, the employer may

demonstrate by a preponderance of the evidence that its action would have been

the same toward the employee even without the protected speech. Id.

      In this case, M s. Vigil’s claim does not survive beyond the first tw o steps.

W ith respect to whether she spoke pursuant to her official duties, although

M s. Vigil insists that it was not her “job responsibility” to report wrongdoing,

                                          -9-
Aplt. Br. at 35, “[a]n employee’s official job description is not dispositive,”

Brammer-Hoelter, 492 F.3d at 1203. Rather, “[t]he ultimate question is whether

the employee speaks as a citizen or . . . in his or her professional capacity.” Id.

(internal quotation marks omitted). And on this score, M s. Vigil’s complaints of

falsely reported student statistics clearly were made in her professional capacity

as office manager because she was the one charged with filing these reports.

      As for the remainder of her speech, it does not relate to matters of public

concern. M s. Vigil’s complaints that the administration favored certain staff

members, failed to evaluate her performance and increase her salary, and hired a

new teacher during the budget deficit are not matters of public concern because

they are “internal in scope and personal in nature.” Id. at 1206 (internal quotation

marks omitted). Further, even if her statements about the school’s inadequate

security measures w ere sufficiently related to matters of public concern, there is

absolutely no evidence that she was fired for voicing this concern. Thus,

M s. Vigil fails to advance a viable free speech retaliation claim, and the

individual defendants are entitled to qualified immunity.

      3. Procedural Due Process

      Next, M s. Vigil asserts that she was denied due process because she was

terminated without notice. “Procedural due process ensures that a state will not

deprive a person of life, liberty or property unless fair procedures are used in

making that decision.” Kirkland v. St. Vrain Valley Sch. Dist., 464 F.3d 1182,

                                          -10-
1189 (10th Cir. 2006) (quotation omitted). In deciding whether a plaintiff was

denied procedural due process, we ask first, whether she possessed a protected

interest to which due process protection was applicable; and second, whether she

was afforded an appropriate level of process. Id.

       In M s. Vigil’s case, she was employed under a binding contract until

June 30, 2004, and therefore had a protected property interest in continued

employment until that date. See Dill v. City of Edmond, 155 F.3d 1193, 1206

(10th Cir. 1998) (“Protected property interests arise, not from the Constitution,

but from state statutes, regulations, city ordinances, and express or implied

contracts.”). Her contract, however, expressly provided that it could “be

terminated by the School for cause, including . . . insubordination . . . physical or

mental inability to perform the required duties or for any other good and just

cause . . . .” Aplt. A pp. at 66.

       M s. Vigil argues that she took a leave of absence for medical reasons,

notwithstanding M r. M arks’ warning that no such form of leave existed. Thus,

under the express terms of her contract, her inability to perform the duties

required of her and the fact that she took leave without authorization provided the

school with just cause to terminate her contract. M oreover, the fact that M s. Vigil

negotiated the circumstances of her departure during mediation clearly establishes

that she received adequate due process. Consequently, we conclude that

M s. Vigil’s claim is w ithout merit.

                                         -11-
      4. Equal Protection

      M s. Vigil also contends that she was treated differently from similarly

situated employees because she was not allowed to attend further schooling,

receive pay raises, take medical leave, or arrive late to work without reprimand.

Quoting our decision in M imics, Inc. v. Village of Angel Fire, 394 F.3d 836, 849

(10th Cir. 2005), she asserts that this disparate treatment constituted a “campaign

of official harassment directed against her out of sheer malice.” Aplt. Br. at 46

(alteration omitted).

      “The Equal Protection Clause of the Fourteenth Amendment comm ands that

no State shall ‘deny to any person within its jurisdiction the equal protection of

the laws,’ which is essentially a direction that all persons similarly situated

should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). Although M s. Vigil

does not claim to be a member of a protected class, she may bring an equal

protection claim as a “class of one” by proving that she was “singled out for

persecution due to some animosity . . . wholly unrelated to any legitimate state

activity.” M imics, Inc., 394 F.3d at 848-49 (quotations and citation omitted).

      M s. Vigil’s claim is wholly without merit. Initially, we think her

comparison to M imics, Inc. is ill-conceived. In that case, we found that the

plaintiffs w ere selectively targeted and treated differently from others similarly

situated due to their alignment with an opposing political faction. Id. at 849.

                                         -12-
That conclusion was based on specific evidence that the defendant building

inspector twice entered the plaintiffs’ place of business without authorization. Id.

at 843-44, 847 n.5.

      Here, by contrast, M s. Vigil offers no evidence to suggest that she was

singled out for illegitimate reasons. Instead, we note that the individual

defendants have legitimate interests in regulating faculty development, the use of

medical leave, and the provision of salary increases. They also have a legitimate

interest in ensuring that their staff is punctual. Further, although M s. Vigil

asserts that unlike other employees, she was not allowed to have summers off,

pursue additional schooling, receive pay raises, take medical leave, or arrive late

to work without penalty, she fails to demonstrate that she was similarly situated

to these other employees. “Similarly situated employees are those who deal with

the same supervisor and are subject to the same standards governing performance

evaluation and discipline.” Aramburu v. Boeing Co., 112 F.3d 1398, 1404

(10th Cir. 1997) (quotation omitted). M s. Vigil likens herself to other staff

members by virtue of the fact that they all answ ered to M r. M arks, but she fails to

demonstrate that they were subject to the same performance and disciplinary

standards. Therefore, because M s. Vigil has not shown that she was similarly

situated and cannot show that she was singled out for illegitimate reasons, her

equal protection claim fails.




                                          -13-
                        B . Summary Judgment For SVA

      Finally, we consider whether liability may be imposed on SVA, which, as

an entity defendant, is not eligible for qualified immunity. W e review the grant

of summary judgment de novo, applying the same legal standard as the district

court. Hollander v. Sandoz Pharms. Corp., 289 F.3d 1193, 1214 (10th Cir. 2002).

W e have previously held that municipal liability may not be imposed on an entity

defendant where individual defendants are found to have committed no

constitutional violation. See Butler v. City of Prairie Village, 172 F.3d 736, 747

(10th Cir. 1999) (“Because our conclusion that the individual defendants are

entitled to qualified immunity rests on the determination that none of them

violated Plaintiff’s constitutional rights, the City may not be found to have

violated his rights.”); Wilson v. M eeks, 98 F.3d 1247, 1255 (10th Cir. 1996)

(quotation omitted) (“A municipality may not be held liable where there was no

underlying constitutional violation by any of its officers.”). Our conclusion here

that the individual defendants committed no constitutional violation therefore

precludes a finding of liability against SVA. Accordingly, SVA was entitled to

summary judgment.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court

                                                    Jerome A. Holmes
                                                    Circuit Judge

                                        -14-
