                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                August 15, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT


    DAWN BUNCH,

                Plaintiff-Appellant,

    v.                                                  No. 10-5109
                                           (D.C. No. 4:09-CV-00458-CVE-FHM)
    INDEPENDENT SCHOOL DISTRICT                         (N.D. Okla.)
    NO. I-050, OSAGE COUNTY, a/k/a
    Prue Public Schools; RON
    MEADOWS; GERALD JACKSON;
    VALERIE TRASTER; SYLVIA
    HENDRIX,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


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



         Bringing suit under 42 U.S.C. § 1983, Dawn Bunch alleged defendants’

termination of her employment with the Prue, Oklahoma, public school district

(the District) violated her First and Fourteenth Amendment rights. She appeals


*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
from a summary judgment rejecting her claims, in which the district court

determined she (1) had no protected property interest in her employment, and

(2) failed to show her 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. Bunch was a

full-time support employee who had served as the District’s treasurer since the

2003-2004 school year. 2

       In June 2008, the Board voted to renew Bunch’s support-employee contract

for the 2008-2009 school year. She signed the contract, which included certain

employment-security provisions, in early October. Soon thereafter, however, the

Board became concerned about the District’s financial situation and retained a

school finance director from another district as a consultant to review its finances.

In his written report dated November 20, 2008, the consultant summarized a

November 18 meeting with Board members and the Board’s attorney:

       It was suggested that a budget had not been presented to the board
       for approval and that certain expenditures have been allowed to go
       unpaid. It was further implied that the board had concerns . . . that

1
       Our jurisdiction derives from 28 U.S.C. § 1291.
2
      Starting in the 2007-2008 school year, Bunch also served as the activity
fund treasurer under a separate extra-duty contract, also terminated on December
8, 2008. She makes no argument related to that contract termination.

                                         -2-
      the fund balance would be smaller at the end of the year. It was
      further suggested that IRS payments, TRS payments, and Health
      Insurance premiums for some employees had failed to be reported.

Aplee. Supp. App. at 195. The consultant’s visit to the administrative office on

November 20 indicated that, with regard to the cash balances, the treasurer had

“failed to accurately enter the data for several years.” Id. “I do not believe at

this time any type of illegal activity has occurred, however, estimated revenue has

not been entered for several years. . . . Basically, all the treasurer did was receipt

revenue with no accountability to budgeted allocations.” Id. Further, during his

visit, the consultant was made aware of a particular bill from the prior year that

had gone unpaid, without any provision for reserves from the prior year’s

accounts. He wrote:

      It is apparent that the district is in need of staff appropriately trained
      to perform the duties of a treasurer, encumbrance clerk, payroll clerk,
      and activity custodian. . . . The issue of the staff and the related
      duties of data entry with the Prue staff indicate that changes should
      be made and appropriate training and supervision should be
      immediate.

Id. at 196.

      At a meeting on November 25, 2008, the Board went into executive session

to discuss the results of the investigation. During this session, the consultant

expressed concerns about Bunch’s performance. In his deposition, he later

explained, “either she wasn’t properly trained or she was not doing her job as

required.” Id. at 161. “I recommended that . . . the treasurer . . . she’s been there


                                          -3-
five years and she should know all this by now. It would be my recommendation

that if she hasn’t done the job in five years, she probably doesn’t know how to do

it now, that they find . . . another treasurer.” Id. at 177. Defendant Board

member Sylvia Hendrix recalled the consultant effectively saying “there was a

mess out there” in the financial office. Id. at 214. She also remembered, “There

were warrants, checks that were written that were in drawers, were never sent.

Some items were paid doubly and triply. . . . Deposits were not being made

properly. Taxes were not being paid properly. . . . [I]t didn’t take [the

consultant] very long to see that there were some definite problems out

there . . . .” Id. at 214-15. After returning to open session, and without

holding a due-process hearing, the Board terminated Bunch’s employment as the

District’s treasurer.

      Bunch’s complaint claimed a property interest in her employment contract

entitled her to a hearing before her employment was terminated. She also alleged

the termination was in retaliation for her exercise of free speech rights because,

earlier that fall, she had signed a state-court petition calling for a grand jury




                                           -4-
investigation into the activities of Board members, and she had complained to

friends and family about the Board. Bunch appeals 3 from the summary judgment. 4

                                     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

      Contrary to the district court’s conclusion Bunch contends she was entitled

to a due-process hearing because she had a property interest in her employment. 5



3
       Other former employees have appealed from the decisions in other cases
arising from events during Prue’s 2008-2009 school year. See Cypert v. Indep.
Sch. Dist. No. I-050 (No. 10-5122); James v. Indep. Sch. Dist. No. I-050
(No. 10-5124).
4
       Bunch does not appeal from the dismissal of her state-law claims. The
district court declined to exercise supplemental jurisdiction over them after
rejecting the federal claims.
5
       Before the district court, Bunch 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. Her brief mentions substantive due
process only in passing. She has waived our review of that issue. See Therrien v.
Target Corp., 617 F.3d 1242, 1253 (10th Cir. 2010).

                                        -5-
Okla. Stat. tit. 70, § 5-114 provides that a district treasurer serves at the pleasure

of the Board of Education. Nevertheless, she claims a property right in her

support-employee contract because it contains employment security provisions

consistent with Okla. Stat. tit. 70, § 6-101.40, which allows full-time

school-district support employees to be discharged only for cause. But the district

court concluded the Board did not have the power to waive or supercede § 5-114

by entering into a contract purporting to give Bunch expanded rights. We agree.

       More than ninety years ago, the Oklahoma Supreme Court held that a

superintendent’s employment contract could not supercede a statute providing he

served at the pleasure of the board. Farley v. Bd. of Educ., 162 P. 797, 799-801

(Okla. 1917); see also Adams v. Indep. Sch. Dist. No. 43, 964 P.2d 237, 238

(Okla. Civ. App. 1998) (holding a provision in a superintendent’s contract was

void as contrary to statute). Accordingly, for substantially the reasons discussed

in the district court’s order filed on August 20, 2010, Bunch had no property

interest in her employment and was not entitled to a hearing before it was

terminated.

II.   Free Speech

      Bunch next quarrels with the district court’s resolution of her retaliation

claim, i.e., she was fired for exercising her First Amendment rights. We apply

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

547 U.S. 410 (2006), and Pickering v. Board of Education, 391 U.S. 563 (1968):

                                           -6-
      (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.

Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741, 745 (10th Cir. 2010)

(quotation omitted). “The first three steps . . . are issues of law to be resolved by

the district court, while the last two are ordinarily for the trier of fact.” Id.

(quotation omitted).

      One basis for Bunch’s First Amendment claim was her signature on the

petition for a state-court grand jury investigation. Another was her comments

critical of the Board made to friends and to her father, who was also her pastor.

The district court concluded her allegations were insufficient to show protected

speech. The only evidence she offered of a specific public statement was her

signature on the petition. With regard to that, the court decided she satisfied the

first three Garcetti/Pickering steps but failed to establish her signature on the

petition was a motivating factor behind the termination.

      Bunch tells us she “has produced sufficient evidence of statements and

actions that she engaged in as [a] citizen[] relating to matters of public concern.”

Aplt. Br. at 24. But the record contains only general allegations failing to

identify with particularity statements or actions sufficient to satisfy her burden to


                                           -7-
identify the specific instances of speech underlying her claim. See Craven v.

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

inadequate identification of speech in appellate argument). With regard to her

alleged comments to friends and family, she did not establish the occurrence

and/or the content of the speech sufficiently for the court to even begin the

Garcetti/Pickering analysis.

      With respect to the grand jury petition, Bunch argues the fourth factor is

ordinarily a jury question. She is generally correct, but summary judgment is

appropriate when “there simply is no evidence in the record from which a trier of

fact could reasonably conclude the [protected speech] was a motivating factor in

[the plaintiff’s] termination.” Rohrbough, 596 F.3d at 750; see also Maestas v.

Segura, 416 F.3d 1182, 1188-92 (10th Cir. 2005) (affirming a grant of summary

judgment because plaintiffs failed to present sufficient evidence of causation).

      Bunch relies on temporal evidence – her termination followed the filing of

the petition by only two months. For purposes of this decision, we assume a two-

month gap between protected activity and adverse conduct may establish a causal

connection. See Annett v. Univ. of Kan., 371 F.3d 1233, 1239-40 (10th Cir. 2004)

(holding a period of up to two to three months demonstrated causation for the

purposes of establishing a prima facie case); Anderson v. Coors Brewing Co.,

181 F.3d 1171, 1179 (10th Cir. 1999) (assuming a period of approximately nine

weeks was sufficient to establish a prima facie case of retaliation); but see

                                          -8-
Meiners, 359 F.3d at 1231 (stating a gap of between nine weeks and three months

is “probably too far apart . . . to establish causation by temporal proximity

alone”).

      Even assuming a two-month period would be sufficient to establish the

causal link, she failed to show any Board member was aware of her signature on

the petition (one among more than 1,000). Because the record contains a copy of

the petition, but not the signatures, it is impossible to determine whether Bunch’s

signature is legible or illegible, obvious or obscured. Moreover, each of the

individual defendants denied knowing that Bunch had signed it. And she

admitted to never speaking to any Board member about the petition or making any

other public statements critical of the Board. “[T]he proximity between a

specific . . . activity and the alleged retaliatory act is meaningless unless those

who caused the alleged retaliatory act to occur are shown to have been aware of

the specific activity.” Hysten v. Burlington N. & Santa Fe Ry., 296 F.3d 1177,

1184 (10th Cir. 2002); see also Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187,

1203 (10th Cir. 2008) (“[A plaintiff] must first come forward with evidence

from which a reasonable factfinder could conclude that those who decided to fire

him had knowledge of his protected activity.”); Maestas, 416 F.3d at 1189

(coupling “close temporal proximity” with “[a]n employer’s knowledge of the

protected speech”).




                                          -9-
      Finally, “evidence of intervening events tend[s] to undermine any inference

of retaliatory motive and weaken the causal link.” Maestas, 416 F.3d at 1189

(citation omitted). In this case, as the district court recognized, the financial

investigation and the consultant’s resulting recommendation to terminate Bunch’s

employment were such events.

      AFFIRMED.


                                                      Entered for the Court



                                                      Terrence L. O’Brien
                                                      Circuit Judge




                                          -10-
