                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         April 4, 2006
                               TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                         Clerk of Court


LINDA K. GREENSHIELDS,

             Plaintiff-Appellant,

v.
                                                        No. 04-6195
INDEPENDENT SCHOOL DISTRICT
                                                 (D.C. No. 03-CV-00020-F)
I-1016 OF PAYNE COUNTY,
                                                        (W.D. Okla.)
OKLAHOMA, a political subdivision
of the State of Oklahoma, the
Stillwater School District; WALTER
SWANSON; CHRISTI WINKLE; GIL
EMDE; MIKE WOODS; MICHAEL
DICKS; CRAIG CARTER; JOSEPH
HANEY,

             Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before KELLY, MURPHY, Circuit Judges, and ARMIJO, District Judge **




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment be cited under the terms and conditions of 10th Cir. R. 36.3.

       The Honorable M. Christina Armijo, United States District Court, District
      **

of New Mexico, sitting by designation.
I.    INTRODUCTION

      Second-grade teacher Linda K. Greenshields became embroiled in a conflict

with the Stillwater School District (“Stillwater”) after Stillwater began requiring

teachers to use “learning modules” for science instruction. After a protracted

dispute, the Stillwater Board of Education (“Board”) voted not to reemploy

Greenshields. Greenshields brought suit under 42 U.S.C. § 1983, claiming

Stillwater had retaliated against her for engaging in speech protected by the First

Amendment. The United States District Court for the Western District of

Oklahoma granted summary judgment to Stillwater. Greenshields appeals,

alleging the district court erred by improperly weighing evidence and failing to

analyze certain elements of her claim. Greenshields further asserts the district

court erred when it determined she did not raise a genuine issue of material fact

with respect to the motives underlying Stillwater’s decision not to reemploy her.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

II.   BACKGROUND

      The Board approved a Comprehensive Local Education Plan (“CLEP”) for

the years 2001 to 2005. The CLEP set the curriculum and standards for the

school district. With respect to science education, it required elementary school

teachers to employ an inquiry-based approach using “learning modules.”



                                         -2-
Learning modules contain a teacher’s manual, student workbooks, and

consumable materials for classroom experiments and observation activities.

      Greenshields has been an elementary school teacher in public schools for

more than thirty years. Beginning in 2000, Greenshields attended professional

development classes which trained educators how to teach science using the

learning modules. After attending the classes and using the learning modules,

Greenshields felt the modules were inferior to the methods and materials she had

traditionally used to teach science. She also believed the training classes required

teachers to spend too much time away from the classroom, adversely affected

student learning, and infringed upon teachers’ discretion.

      In 2000 and into the early part of 2001, Greenshields began to write letters

to Stillwater’s assistant superintendent and the president of the school board,

articulating her concerns about the use of learning modules for science

instruction. Moreover, despite administrative directives instructing Greenshields

to attend training workshops and to implement the required science curriculum,

Greenshields told school officials she did not plan to attend additional teacher

training workshops or use the learning modules in her classroom.

      Because of Greenshields’ refusal to comply with administrative direction,

the school principal, Dr. Christi Winkle, issued Greenshields an Admonishment

and Plan for Improvement (“API”) on June 6, 2001. The API listed at least five


                                         -3-
instances when Greenshields did not comply with instructions issued by school

administrators and indicated additional insubordination was unacceptable. It also

noted failure to improve could result in Greenshields’ dismissal.

      Contrary to directions contained in the June API, Greenshields failed to

return a signed copy of the API, failed to indicate a preferred teacher training

date, failed to attend teacher training, failed to meet with the assistant

superintendent, and failed to communicate with the assistant superintendent.

Citing these failures as examples of “unwillingness to comply with reasonable

requests,” Winkle issued Greenshields another API on August 6, 2001. The

August 6 API again warned Greenshields that failure to comply with the terms of

the API could result in her dismissal. From November 2001 to July 2002,

Greenshields filed several grievances with the Board regarding the dispute over

the use of the learning modules. The Board denied her grievances.

      The next school year, Greenshields again refused to teach science using the

learning modules, and continued to disregard instructions given to her by her

supervisors. Among other things, Greenshields did not inventory the contents of

the “Soils” learning module when it was delivered to her classroom in the fall of

the 2002, 1 and refused to meet with Winkle to discuss the science learning



      In a letter from Greenshields to Winkle dated September 18, 2002,
      1

Greenshields explained she would not inventory the “Soils” learning module as
                                                                    (continued...)

                                          -4-
modules. Winkle issued Greenshields two more APIs in October and November

of 2002.

      On December 3, 2002, Winkle and Stillwater School District

Superintendent Dr. Walter Swanson met with Greenshields and her attorney to

discuss the October and November APIs. In a memorandum recapitulating the

meeting, Winkle cataloged a variety of instances when Greenshields did not

comply with administrative directives set forth in the APIs. In the memorandum,

Winkle noted that she considered Greenshields’ performance and conduct to be

unsatisfactory. Winkle directed Greenshields to instruct students using the

“Changes” learning module and requested that Greenshields advise her of three

specific times when she could observe Greenshields teaching the module.

      Later that December, Greenshields filed suit against Stillwater in Oklahoma

state court. Greenshields sought a declaratory judgment that her teaching contract

and the United States Constitution guaranteed her academic freedom and that she


      1
        (...continued)
instructed. She told Winkle,
              Since you requested the Soils Science Module, completion of
       the check-out form and inventory is your responsibility, not mine.
       Moreover, you are requested to immediately remove the science
       module box from my classroom and return it to the Material
       Resources Center. Your demands that I inventory science module
       boxes, that I did not requisition, constitutes continued administrative
       harassment and willful perpetuation of a hostile work environment
       for me that has never been resolved.
ROA, Appellant’s App. vol. I at 198.

                                         -5-
was not required to teach science using the learning modules. Stillwater removed

the suit to federal court.

      When the second semester started, Greenshields suggested Winkle conduct

a classroom observation either in the morning or early afternoon of January 9,

2003. Winkle observed Greenshields’ class at the suggested time, expecting to

see Greenshields teach her class using the “Changes” learning module. Instead of

teaching from the module, however, Greenshields administered a practice spelling

test to her students. After the classroom observation, Winkle wrote a

memorandum to Greenshields documenting Greenshields’ failure to teach from

the “Changes” module and stating that Greenshields had failed to meet many of

the conditions of her APIs. Winkle’s memorandum also asked Greenshields to

provide additional times when she could observe Greenshields teach the module.

Greenshields did not suggest any additional observation dates.

      Despite the growing conflict between Greenshields and school

administrators in 2001 and 2002, Winkle’s evaluations of Greenshields for those

years indicate Greenshields met the expected standards in almost all categories

listed on Stillwater’s Teacher Performance Analysis Report (“TPAR”) form. 2 In

March of 2003, however, in a TPAR based on the January 9 classroom


      2
       Greenshields’ 2001 report did indicate, however, that Greenshields needed
refinement in the category labeled “Responds professionally to administrative
requests and direction.”

                                        -6-
observation, Winkle determined Greenshields needed refinement or improvement

in twenty-five of the thirty-three categories listed on the form. 3 The TPAR

recommended nonrenewal of Greenshields’ teaching contract. According to

Greenshields, the 2003 TPAR “was by far the worst performance evaluation [she]

ha[d] ever received.” ROA, Appellant’s App. vol. II at 376.

      Shortly after giving Greenshields the negative TPAR, Winkle issued

another API to Greenshields, citing a variety of violations of school policy and

other shortcomings. In April, the Board notified Greenshields that it had received

from Superintendent Swanson a recommendation that she not be reemployed. In

June, the Board held a due process hearing to determine whether to reemploy

Greenshields. After hearing evidence presented by both Greenshields and

representatives of the school administration, the Board determined Greenshields

should not be reemployed due to “willful neglect of duty,” “incompetency,” and

“unsatisfactory teaching performance.” In a “Memorandum of Decision,” the

Board listed findings of fact in support of its decision. Among other things, the

Board found by a preponderance of the evidence that Greenshields repeatedly

refused to follow the directives of her supervisors and violated school policy.

The Board found such conduct to be “totally inexcusable and unacceptable.”



      3
       In a two-page “Evaluation Summary,” Winkle explained the basis for each
of Greenshields’ low marks on the TPAR.

                                        -7-
None of the Board’s findings of fact referenced Greenshields’ letters to school

administrators and members of the Board or her lawsuit against Stillwater.

      Greenshields exercised her right to have the Board’s decision reviewed de

novo by an Oklahoma state court. After a bench trial, the court determined

Oklahoma law allows teachers to select the methodology by which they teach

their students. Transcript of Court’s Ruling at 37–38, Greenshields v. Stillwater

Sch. Dist., No. CJ-2003-428 (Okla. D. Ct. 2003). Accordingly, the court found

Greenshields’ teaching was not incompetent or unsatisfactory, and she did not

willfully neglect her duties. Id. at 40. The state court ordered Stillwater to

reinstate Greenshields as an elementary school teacher. Id.

      After the Oklahoma state court’s ruling, Greenshields amended her

complaint in federal court. Greenshields brought a claim under 42 U.S.C. § 1983,

alleging Stillwater had retaliated against her for engaging in speech protected by

the First Amendment. Stillwater filed a motion for summary judgment. The

district court determined Greenshields presented no evidence to controvert the

Board’s assertion that it decided to not reemploy Greenshields because she

refused to follow her supervisors’ directives and failed to comply with APIs, not

because she wrote letters to school administrators and members of the Board and

filed a lawsuit against Stillwater. Greenshields v. Stillwater Sch. Dist., No. CIV-

03-0020-F, at 5 (W.D. Okla. May 24, 2004). The district court granted


                                          -8-
Stillwater’s motion for summary judgment. Id. at 6. Greenshields appeals from

the district court’s decision, arguing the court erred when it failed to properly

analyze her claim and when it concluded she did not raise a genuine issue of

material fact with respect to the motives underlying Stillwater’s decision not to

reemploy her.




                                          -9-
III.   ANALYSIS

       This court reviews de novo a grant of summary judgment, using the same

legal standard as used by the district court. Barker v. City of Del City, 215 F.3d

1134, 1137 (10th Cir. 2000). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). When reviewing a grant of summary judgment, this court views the

evidence in the light most favorable to the nonmoving party. Barker, 215 F.3d at

1137. “In First Amendment cases, an appellate court has an obligation to make an

independent examination of the whole record in order to make sure that the

judgment does not constitute a forbidden intrusion on the field of free

expression.” Id. (quotations omitted).

       A.    District Court’s Mode of Analysis

       This court uses a four-part test to analyze cases of employment retaliation

involving First Amendment claims. Schrier v. Univ. of Colorado, 427 F.3d 1253,

1262 (10th Cir. 2005).

       First, we must determine whether the employee’s speech involves a
       matter of public concern. If so, we then balance the employee’s
       interest in commenting upon matters of public concern against the
       interest of the State, as an employer, in promoting the efficiency of
       the public services it performs through its employees. Third, if the
       balance tips in favor of the employee, the employee then must show

                                         -10-
       that the speech was a substantial factor or a motivating factor in the
       detrimental employment decision. Fourth, if the plaintiff establishes
       that speech was such a factor, the employer may demonstrate that it
       would have taken the same action against the employee even in the
       absence of the protected speech.

Id. The first two prongs of the test are legal questions; the second two involve

questions of fact. Hulen v. Yates, 322 F.3d 1229, 1237 (10th Cir. 2003).

       In conducting its analysis of Greenshields’ retaliation claim, the district

court did not address the first two prongs of the four-part test. Greenshields, No.

CIV-03-0020-F, at 2. Instead, the court based its grant of summary judgment on

the third and fourth prongs of the test. It concluded Greenshields failed to present

any evidence to show her letters or her lawsuit were substantial or motivating

factors in Stillwater’s decision not to renew her contract. Id. at 5–6. It also

determined the evidence showed Greenshields’ contract would not have been

renewed even if she had not engaged in speech protected by the First Amendment.

Id. at 6.

       Greenshields argues, without citation to authority, that the district court

erred when it skipped the first two steps of the four-part test. Her argument is

without merit. In another § 1983 retaliation case, this court assumed without

deciding that an employee’s speech was constitutionally protected. Setliff v.

Mem’l Hosp. of Sheridan County 850 F.2d 1384, 1393 (10th Cir. 1988). We went

on to uphold the lower court’s grant of summary judgment because the employee


                                          -11-
failed to establish a causal link between his speech and the adverse employment

action taken by his employer. Id. at 1393; see also Smith v. Dunn, 368 F.3d 705,

708 (7th Cir. 2004) (noting an employee’s failure to establish a genuine issue as

to the employer’s motivation was dispositive and rendered unnecessary an inquiry

into whether the employee’s speech was constitutionally protected). In short, in a

retaliation case, an employee’s failure to show that her protected speech was a

substantial or motivating factor in bringing about an adverse employment action

may be dispositive. If it is, a court need not perform an analysis under the first

two prongs of the four-part test.

      Greenshields also contends the district court erred by weighing the

evidence in a summary judgment context. She asserts a district court cannot

determine questions of fact at the summary judgment stage. Because the third and

fourth prongs of the four-part test involve issues of fact, Greenshields claims

those prongs must be left for the jury to decide. Accordingly, she argues, the

district court erred when it granted Stillwater’s motion for summary judgment

under the third and fourth prongs of the four-part test.

      At the summary judgment stage, the court’s function is not to weigh

evidence and find the truth, it is instead to determine whether there is a genuine

issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

A court must, however, enter summary judgment against a party who “fails to


                                         -12-
make a showing sufficient to establish the existence of an element essential to

that party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). At the

summary judgment stage, a court asks “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251–52.

      In the instant case, the district court determined all the evidence presented

supported the Board’s position, namely, that Greenshields was not reemployed

because she refused to teach the learning modules, refused to follow instructions

from her supervisors, refused to meet with her supervisors, and refused to follow

the directives set forth in the APIs. Greenshields, No. CIV-03-0020-F, at 5. The

court noted Greenshields presented nothing to controvert the evidence in support

of Stillwater’s position, and presented nothing to suggest that her speech—her

letters to school administrators and members of the Board and her suit against

Stillwater—motivated the Board’s decision not to renew her contract. Id.

Viewing the evidence before it, the district court concluded Greenshields failed to

establish an element essential to her claim. Id. at 3, 5–6. Contrary to

Greenshields’ assertions, the district court did not weigh the evidence. Instead, it

simply determined there was no evidence to support Greenshields’ claim. We

discern no error in the district court’s approach.

      B.     Genuine Issue of Material Fact


                                         -13-
        Greenshields contends she presented to the district court sufficient evidence

to demonstrate the existence of a genuine issue of material fact as to the

motivation behind the Board’s vote to not to reemploy her. Accordingly, she

argues the district court erred when it entered summary judgment in favor of

Stillwater.

        “[T]he mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment;

the requirement is that there be no genuine issue of material fact.” Liberty

Lobby, 477 U.S. at 247–48. “When the party moving for summary judgment

makes a showing that there is no evidence to establish an essential element of the

claim, the burden then shifts to the party opposing the motion. That party must

respond with evidence or citations to the record that dispute the motion for

summary judgment.” McKibben v. Chubb, 840 F.2d 1525, 1532 (10th Cir. 1988).

In other words, a plaintiff “must make more than conclusory allegations regarding

his First Amendment claim” to avoid summary judgment. Setliff, 850 F.2d at

1392.

        In evaluating a plaintiff’s retaliation claim, “it is essential to identify the

speech which resulted in the alleged retaliation.” Hulen, 322 F.3d at 1237. In her

appellate brief, Greenshields contends her protected speech included her letters to

school administrators and members of the school board, her December 2002


                                            -14-
lawsuit, and her refusal to teach the learning modules and to follow the terms of

the APIs. Although her First Amended Complaint arguably raised the argument

that Greenshields’ protected speech included her refusal to teach from the

learning modules and failure to comply with the terms of Winkle’s APIs, 4 her

arguments before the district court did not. Nothing in Greenshields’ response in

opposition to Stillwater’s motion for summary judgment reasonably can be

construed as an argument that her speech included her refusal to teach from the

learning modules and her noncompliance with Winkle’s APIs. Instead, the

arguments contained in Greenshields’ response brief contend only that her

protected speech consisted of letters she wrote to school administrators and

members of the Board and her December 2002 lawsuit. 5

      This court will not consider claims that have been waived or abandoned in

the district court. O’Connor v. City & County of Denver, 894 F.2d 1210, 1214

(10th Cir. 1990). Because Greenshields’ response brief before the district court


      4
        Greenshields’ First Amended Complaint alleged her failure to teach using
the learning modules resulted in “workplace harassment and retaliation that
included, inter alia, admonitions and an extremely hostile work environment from
and created by her building principal and other administrators working for
[Stillwater].” ROA, Appellant’s App. vol. I at 57.
      5
       Greenshields’ response brief makes clear her belief that her December
2002 lawsuit was the cause of the Board’s decision not to renew her teaching
contract. “Simply put,” she writes, “Greenshields received a very poor evaluation
and was terminated following her filing of a lawsuit in Payne County.” ROA,
Appellant’s App. vol. I at 366.

                                        -15-
did not include arguments that the protected speech at issue included her refusal

to teach using the learning modules and her refusal to follow the terms of

Winkle’s APIs, this court will not consider such arguments for the first time in

this appeal. We therefore examine Greenshields’ argument that her protected

speech consisted only of her letters to school administrators and Board members

and her December 2002 lawsuit.

       Even viewed in the light most favorable to Greenshields, the pleadings,

affidavits, and supporting materials do not support Greenshields’ contention that

she presented sufficient evidence from which a jury could conclude the Board

voted to not reemploy her in retaliation for her allegedly protected speech. The

Board presented evidence demonstrating Greenshields’ speech played no role in

its decision not to renew her contract. When the Board voted to not reemploy

Greenshields, its findings of fact did not reference her letters or her lawsuit;

instead, the Board noted Greenshields’ unprofessional conduct, violation of

school policies, and insubordinate behavior. Affidavits from individual members

of the Board similarly reveal they voted not to reemploy Greenshields for the

reasons set forth in the Boards’ findings of fact, not because of Greenshields’

letters or lawsuit.

       Greenshields contends she has presented evidence sufficient to cast doubt

on Stillwater’s explanation of its decision not to reemploy her. She argues the


                                         -16-
Oklahoma state court’s decision to reinstate her as a teacher indicates the

evidence does not overwhelmingly favor Stillwater. The state court’s decision,

however, determined Greenshields had the right to select her own teaching

methodology as a matter of state law. It did not determine the Board’s reasons

for not reemploying Greenshields were pretextual. Nothing in the state court’s

ruling suggests the Board voted not to reemploy Greenshields because of the

letters she wrote or because she filed a lawsuit against Stillwater.

      Greenshields also argues Stillwater’s finding that she was an incompetent

teacher is unworthy of belief because the evidence establishes she was an

excellent teacher. Teachers, however, have responsibilities outside the classroom.

While Greenshields may have excelled in front of her students, that in no way

controverts the evidence that she refused to teach using the learning modules,

violated school policies, and failed to follow the directives of her supervisors.

Again, Greenshields has offered nothing to suggest the Board reached its decision

to not reemploy her because of Greenshields’ letters or lawsuit.

      Greenshields’ other attempts to undermine the Board’s stated reasons for

not renewing her teaching contract also fail. They all rely on Greenshields’ claim

that her speech included her refusal to teach using the learning modules and her

failure to follow the directives of her supervisors. As noted above, Greenshields




                                         -17-
did not make such arguments before the district court, and this court will not

consider them here.

      After a de novo review of the parties’ briefs and contentions, the district

court’s order, and the entire record on appeal, we agree with the district court’s

conclusion that Greenshields failed to establish any genuine issue of material fact

and thus failed to prove her protected speech was a substantial and motivating

factor in Stillwater’s adverse employment action. This court affirms the entry of

summary judgment in favor of defendant Stillwater for substantially the same

reasons stated by the district court in its order dated May 24, 2004.

IV.   CONCLUSION

      For the reasons stated above, the judgment of the United States District

Court for the Western District of Oklahoma is affirmed.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




                                         -18-
